In the past few days, editorial columns of newspapers have become battlegrounds for the country’s legal luminaries on the subject of lack of transparency in the process of appointment of judges. There are supporters, opponents, and some opponents who briefly become cohorts. I chose not to be part of any of these groups for time being despite having held a brief in all three judges’ cases and also having contested the validity of collegium system in the recent National Judicial Appointments Commission (NJAC) case. Nevertheless, I write this piece wearing the hat of a nominated Member of Parliament.
The framers of our Constitution did not intend the judiciary to be “superior” to Parliament and the executive, but intended it to be the sentinel on the qui vive should the other two wings overstep the boundaries of their jurisdiction or omit to discharge their duty as public trustees. Firstly, all three limbs of the sovereign power have distinct functions and powers. Though they may overlap in some respects, the constitutional demarcation (separation of powers) is not eroded because of such overlap. For instance, under Article 145(1), the Supreme Court can make rules for regulating the practice and procedure of the court, which is essentially a legislative function. However, such power can be exercised only with the approval of the president and is subject to the provisions of any law made by Parliament. The Constitution provides for a check, if one limb of sovereign power steps into the domain of another. So, the court may review the validity of the rules of the Supreme Court and the plenary legislation. In this backdrop, the appropriation of the executive and legislative powers by an authority primarily exercising adjudicatory power, without any checks and balances, would be destructive of the basic feature of democracy, and if not forthwith remedied, would dilute the very essence of a democratic form of governance.
Secondly, the judiciary is not accountable in the manner that the executive is accountable, even though all the three limbs source their power to the people. It is a constitutional imperative that an authority must be accountable if it wields power. Since the appointment of judges is an executive function and not an adjudicatory function, accountability follows as its inseparable concomitant. Presently, in matters of judicial appointment, the accountability seems to lie neither with the judiciary nor with the executive. Such a situation is without precedent, in our country or elsewhere.
Thirdly, the public has interest in the general administration of justice and the government is the elected trustee of public interest. Therefore, it must at least be allowed to have a say in the appointment of judges. It is nobody’s case that the say must be final or even determinative. But it has now been reduced to a “rubber stamp” in the matter of appointment of judges.
Fourthly, the “primacy” of the judiciary was neither intended nor provided for by the Constituent Assembly. The primacy of the chief justice of India or a collegium of judges cannot be part of the basic structure of the Constitution. A collegium of five judges curtails the discretion of the president, enshrined in Article 124(2), to consult such judges of the Supreme Court and high courts as he may “deem necessary for the purpose”. If the president deems it necessary to consult more than five judges of the Supreme Court, judges of the high court and other judges of the Supreme Court (not part of the collegium), who unanimously or by a majority give an opinion contrary to that of the collegium, the president would nevertheless be bound by the opinion of the collegium. I believe this is a breach of the letter and spirit of the Constitution.
Lastly, the parameter for judicial review of a constitution amendment is very narrow, because democracy is based on the principle of majority. The following observations of Justice Khanna, about the method of trial and error, in the Kesavananda Bharati case, are apposite: “In exercising the power of judicial review, the courts cannot be oblivious of the practical needs of the government… Judicial review is not intended to create what is sometimes called judicial oligarchy, the aristocracy of the robe, covert legislation, or judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena.”
Parliament thus, owes a duty to the people of whom it’s a trustee. Some eminent retired judges of the Supreme Court, who had experience as members of the collegium, have been critical of the collegium’s functioning. One crucial aspect to be borne in mind is that the constitutional amendment in relation to appointment of judges was passed with an overwhelming majority in both the houses of Parliament, with only one dissent. The appropriate recourse is to accept that the working of the collegium has its shortcomings and move forward to remedy it promptly.
I further believe that there is a need to bring in a constitutional amendment to make it compulsory for all cases questioning the validity and/or interpretation of a constitutional amendment to be heard by a bench consisting of not less than 13 judges. Article 145(3) states that a “minimum” of five judges are to sit for the purpose of deciding any case involving a substantial question of law pertaining to interpretation of the Constitution or a presidential reference under Article 143. The use of the word “minimum” implies that the composition of the bench has to be decided according to the needs of the time and the importance of the constitutional question. A minimum of five judges was prescribed when the total strength of judges was seven, which later has increased to 31 now. The Kesavananda Bharati was heard by a full court (the judges’ strength at that time was 14).
After amending the Constitution, the president may exercise his power to consult the Supreme Court by framing appropriate questions and making a reference under Article 143 to revisit the NJAC decision. It is a good sign that the Supreme Court has recently agreed to hear a petition seeking the formation of a “public, transparent body”, neither controlled by the government nor the judiciary, for the appointment of judges to the Supreme Court and high courts. However, the logic of hearing such a petition while simultaneously striking down a constitutional amendment that sought to establish a body for this very purpose appears to be incongruous.
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