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Monday, September 27, 2021

Rear View: Judges versus politicians

This is how it all began, on February 27, 1967.

Written by Inder Malhotra |
Updated: November 2, 2015 12:10:03 am
 Supreme court, National Judicial Appointments Commission, NJAC, CJI, unconstitutional law, law making, indian law, indian unconstituional law, K. Subba Rao, express opinion, indian express Supreme Court of India

After the Supreme Court’s judgment declaring the law for the formation of a National Judicial Appointments Commission to make appointments to the higher judiciary unconstitutional — at present, these appointments are made by the chief justice of India, together with the two most senior judges of the Supreme Court “in consultation with the executive” — the country is engaged in a debate even more overheated than the nightly TV talk shows. Nor is this duel likely to end anytime soon. It is necessary, therefore, to recall how the whole problem began and reached the present stage.

For the first 17 years after the commencement of the Constitution, there was no strain. Jawaharlal Nehru sometimes complained that the judges lived in their “ivory towers” and therefore tended to be too conservative. But there never was conflict between the two sides — not even when Parliament amended the Constitution to undo the impact of some Supreme Court judgments. The problem began on February 27, 1967, when, in what is known as the Golaknath case, the then CJI, K. Subba Rao, mustered a narrow six-to-five majority to deprive Parliament of the power to amend the Constitution’s chapter on fundamental rights. Indira Gandhi, who, barely a year after becoming prime minister, was facing a division within her party on election eve, was furious. She and her followers said that the judgment was an attack on the “sovereignty of the people”, as expressed through their “elected representatives”. Parliament’s right to amend the Constitution must be untrammelled. What a remarkable coincidence it is that nearly half a century later, the second most articulate minister in the government, Arun Jaitley, is denouncing the “tyranny of the unelected”!

One can be sure that whether judges alone should appoint judges or whether this prerogative should be transferred to politicians will continue to be the most important issue, perhaps next only to beef. In 1967, the merits and demerits of the Justice Subba Rao judgment got completely overshadowed by an impropriety he chose to commit. Told by the combined opposition that the Congress party’s divisions might lead to his victory, he agreed to become the opposition’s candidate in the country’s presidential election, only to lose to Indira Gandhi’s nominee, the highly respected Zakir Husain.

Since the Congress tally in the Lok Sabha in the fourth general election dwindled sharply, there was nothing Indira Gandhi could do. But after her spectacular victory in the 1971 polls, she passed the law restoring Parliament’s comprehensive authority to amend the Constitution. There were protests across the country, and the new law was challenged in the apex court. By this time, so strong were the passions both for and against this law that CJI S.M. Sikri constituted a special bench of 13 judges of the Supreme Court. They could not have been more divided among themselves, nor could the majority behind the verdict have been narrower. Six judges, headed by CJI Sikri, were totally against the government. The other six, of whom Justice A.N. Ray was the most senior, were entirely for it. Mercifully, the judgment of Justice H.R. Khanna restored the balance.

However, he agreed with the first six judges on some points and with the other six on several others. Yet, this terribly complex seven-to-six verdict amounted to allowing Parliament to amend all parts of the Constitution subject to the restriction that it cannot change the Constitution’s “basic structure”. Only the Supreme Court could ultimately decide what formed part of the basic structure.

Indira Gandhi was infuriated, especially because, on her decisions to nationalise banks and abolish the privy purses of the princes, she had faced obstacles from the courts. As it happened, CJI Sikri was retiring a day after the “basic structure” judgment was delivered. On that day, she threw to the winds the well-established principle that only the seniormost judge succeeded the CJI. Superseding the three judges next in line of seniority, she appointed Justice Ray, the most senior of the six judges who had gone with the government all the way. The superseded trio resigned. And then Indira Gandhi clamped the Emergency on the country. With a series of drastic amendments to the Constitution, of which the 42nd was the most vicious, the prime minister not only defiled the law, but also spread a fear psychosis among the judges. Some high courts showed courage, but no judgment against the government emanated from the Supreme Court.

Only after the empress had been overthrown and humiliatingly defeated in the 1977 elections did the highest judiciary realise that it had fallen to low depths and lost the respect of the people. But before the judges could take any remedial steps, Indira Gandhi was back in power and, after her assassination, was succeeded by her elder son, Rajiv. So the divided highest judiciary went on blaming one another and inflicting more wounds on themselves. It was only on the conclusion of the Second Judges case in 1993 that the present pattern of appointments of judges was established. If, as many in government, Parliament and the bureaucracy feel, it needs improvement, this should be done amicably. Any attempt to enable the executive to subvert the system by giving it a veto would be a remedy worse than the disease.

The writer is a Delhi-based political commentator

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