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BRP Bhaskar: A law unto themselves
October 20, 2015
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Exclusive to The Gulf Today

Will the Executive meekly submit to the Supreme Court’s decision quashing the National Judicial Appointments Commission Act or will it seek to override it?

India is the only country where judges appoint judges. The Constitution makers did not envisage such a system. It was willed into existence by the Judiciary itself through two verdicts in the 1990s, in exercise of its right to interpret the Constitution.

The Constitution empowers the President to appoint judges of the superior courts in consultation with the Chief Justice of India. Since the President is required to act on the advice of the council of ministers, the Executive enjoyed primacy in the process. .

The system worked on that basis for more than 40 years, until the Supreme Court, in a 1993 judgment, created a collegium of judges, headed by the CJI, to decide on judicial appointments. Five years later, in response to a Presidential reference, it vested the right to choose judges exclusively in the collegium and reduced the Executive’s role to that of a postman carrying the CJI’s recommendations to the President.

Quashing of the NJAC Act designed to restore a reduced role for the Executive in judicial appointments is the latest act of aggrandisement which has virtually made superior court judges a law unto themselves. The process began with the Golaknath case judgment that overruled previous verdicts upholding Parliament’s unfettered right to amend the Constitution and said it could not make changes in the Fundamental Rights chapter.

Significantly, every forward step by the Judiciary came when the Executive and the Legislature were weak.

The Golaknath judgment came after the 1967 elections which, for the first time, left the ruling party without the two-thirds majority needed to amend the Constitution. On several earlier occasions, when the Supreme Court ruled a law unconstitutional, the Executive had got around by making suitable changes in the Constitution.

In the 1971 elections the Congress under Indira Gandhi received a strong mandate and the Executive and the Legislature were once again powerful. At that time the Supreme Court stepped back a little. In the Kesavananda Bharati case, it said Parliament could amend the Fundamental Rights chapter but not in such a way as to alter its basic structure.

The 1993 judgment came when PV Narasimha Rao became Prime Minister without majority support in the Lok Sabha and was busy buying up MPs to keep his position. The 1998 judgment came when AB Vajpayee was heading a coalition with more than a score of parties.

Since the ‘basic structure’ conjured up by the Judiciary remains undefined, the last word on the Constitution now rests with it. Predictably, Justice JS Khehar, who headed a five-member bench, invoked it to invalidate the 99th constitutional amendment and the NJAC Act.

The main argument of supporters of the collegium system, which the four judges who gave the majority verdict echoed, is that its continuance is necessary to ensure the independence of the judiciary. The lone dissenter, Justice J Chelameswar, countered the argument by drawing attention to lack of transparency in the collegium system and to specific instances of inappropriate exercise of power by the court-mandated body.

Justice Madan B Lokur and Justice Kurian Joseph, while agreeing with Justice Khehar that the new measures were unconstitutional, shared Justice Chelameswar’s views on the shortcomings of the collegium system. Accordingly, the bench decided to sit again on November 3 to hear the parties’ views on ways to improve it.

The claim that the presence of the Law Minister in the Judicial Commission will compromise the independence of the judiciary is questionable. The Law Minister was part of the selection process of judges from the time the Constitution came into force and it was through that process that those who decided the Golaknath, Kesavananda Bharati and Judges cases reached the apex court.

Many distinguished jurists like former CJI JS Varma have expressed themselves against the collegium system. The decision to set up a national commission to replace it was based on a recommendation of a Law Commission headed by MN Venkatachalaiah, who too is a former CJI.

The Congress, with whose support the Modi government enacted the NJAC law, has said it would not back any new move on the subject. This severely limits the government’s legislative options.

Shorn of legal and political rhetoric, what the country is witnessing is a power struggle among the three limbs of the state. It may have to go through a long and painful process to restore the system of mutual checks and balances, a basic feature of the Constitution which judicial overreach has destroyed.

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 The author is a political analyst of reckoning
 

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