The vigorous debate that has broken out after the Supreme Court last week struck down the National Judicial Appointments Commission Act has been almost entirely between those learned in the law, but if – as the Chief Justice has said – both the government and the judiciary work for the common man, more of us should form our own views on the judgement.
By a majority of four to one the court held that the Act violated the basic structure of the Constitution. Why? Because it set aside the collegium of judges created by the court, which, for the last 22 years, has decided judicial appointments. That, according to the court, was in the basic structure of the Constitution. Was it? Article 124 laid down that judges of the Supreme Court would be appointed by the President “after consultation” with such judges of the Supreme Court and the High Courts “as the President may deem necessary for the purpose”. It was for the President, which meant the government, to decide if he needed to consult any of the judges, if so, which, and whether of the Supreme Court or the High Courts or both. Judges had no role, except to offer advice if they were consulted. The exception was the Chief Justice of India, who, the Constitution stipulated, “shall always be consulted”.
Nothing in the Constitution gave the judiciary, including the Chief Justice, the power to choose judges. It was drafted by eminent lawyers, who knew exactly what a consultation is. No legal consultation lays down a verdict, it simply offers advice to a client on a course to follow; the choice lies with the person seeking the consultation, not with the person being consulted. On no reasonable interpretation of the English language can it be argued that consultation means either concurrence or consent, and yet that is what the Supreme Court did when it laid down in 1993 that it was the view of the judiciary that would determine the selection of their successors.
What the judges did in 1993 was particularly hard to understand or accept because the Constituent Assembly had considered a proposal that the Chief Justice’s concurrence should be needed for the appointment of judges, and decided to reject it, with Dr BR Ambedkar summing up the rationale with his usual clarity:
“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the government of the day. I therefore think that that is also a dangerous proposition.”
When the judges set up the collegium, therefore, they did not just usurp the procedure laid down in the Constitution and demolish Article 124, they arrogated to themselves a privilege that the Constituent Assembly had decided they must not have. To a common man, it beggars belief that the collegium can be called part of the basic structure of the Constitution. It is only if the rubble of an edifice that has been wrecked is its basic structure.
Perceptions count too
The common man has the right to ask if it is common for judges to appoint judges elsewhere. It is not. No other nation permits this. It is unique to India, but our judges have not explained what is unique in our political system that makes their innovation essential. Unlike politicians in all other countries, developing and developed, are ours uniquely likely to subvert the independence of the judiciary or undermine the Constitution? Where is the empirical evidence for this? The evidence shows that India is a rarity, where parliamentary democracy, with the checks and balances envisaged in the Constitution, has survived, with one hiatus during the Emergency, which was opposed by politicians at great cost to themselves. That challenge to the Constitution was defeated by politicians and civil society, not by the judiciary.
If the executive in India appointed only compliant ciphers as judges, it follows that every judge not chosen by the collegium was tainted, and the record of the judiciary in its first four decades should have been deplorable. Comparisons are invidious but here they are necessary, and the record speaks for itself. Most of the extraordinary, sometimes visionary judgements on which the reputation of the Supreme Court was formed, in India and abroad, were by judges appointed through the procedure stipulated in the Constitution. And they reflected a depth of intellect that is rare in later judgements. To a common man, it is not obvious that the collegium has given him judges better than their predecessors.
But are they more independent? That, after all, is the overriding reason the court has given for setting up the collegium. Over the last few years, we have an objective, international index that gauges public perceptions of judicial independence. This is part of the Global Competitiveness Report put out annually by the World Economic Forum, which, among other variables, tries to measure the level in 144 countries of public trust in politicians, and of judicial independence from governments, corporates and individuals.
In 2011-12, India ranked 97 on public trust in politicians, falling to 106 next year and even further to 115 in 2013-14, reflecting the apathy that had set in in the last years of the UPA. It rose sharply to 50 in 2014-15, following the election of the present government, and in the current report, has risen to 31.
The Indian judiciary, chosen by the collegium, should have been at the top of the list, but its ranking in these five years was 51, 45, 40, 50 and 64. This year, when public trust in India’s politicians has surged, according to the survey, there are 63 countries where the common man’s belief in the independence of his judges is higher than it is in India. None of those foreign judges were chosen by their peers.
Guarding the custodians
It is not just governments that can influence judges, as the WEF’s criteria remind us, but our judges argue that our government is a leading litigant, and therefore should not have a say in the choice of judges. The Indian government is surely not uniquely litigious. A study published by Cornell University on The Government as Litigant found that between 1979 and 2000, the federal government was a party in 29.03% of the non-bankruptcy cases before US courts. That is a very significant percentage, but the US Supreme Court has not invoked it to argue that only judges should choose judges.
The Supreme Court is vehement that the collegium is not the Imperium in imperio – an empire in an empire – that the Constituent Assembly specifically did not want to set up. It says it has set aside the NJAC because, in its words, “wrongful selections” of judges “may well lead the nation into a chaos of sorts”. Only judges, it seems, can ward off the apocalypse.
That sends shivers down the spine of this common man, because there is another institution in our neighbourhood which believes politicians are unreliable, parliament confused, civil society not evolved enough, only it has the clarity of vision and the strength of character the nation needs, and therefore must be given a primacy that the Constitution never intended for it. That is the Pakistan Army, whose leaders trot these arguments out over and over again. In an article in which he tried to analyse why India seemed immune to military coups, one of Pakistan’s finest civil servants, Roedad Khan, concluded that
“The constitution has kept the country united, allowed its democracy to survive and kept the armed forces at bay. The structure of the Indian civil-military relationship is still intact largely because the legitimacy of the political system remains high.”
Those are wise words. It is easy for a political system to lose legitimacy. As the WEF data shows, public trust in politicians had plummeted in India over the last few years, and has just begun to recover. It is for the government to regain that trust, but to a common man, a judgement which questions its intentions and brushes aside the will of parliament diminishes the legitimacy of the political system.
It is also puzzling, because in Suresh Kumar Koushal vs NAZ Foundation, the deeply disappointing judgment in which the Supreme Court struck down the Delhi High Court’s ruling on Section 377 IPC, it held in 2013 that
“…the power of judicial review over legislations is plenary. However, keeping in mind the importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody, self-restraint has been exercised by the judiciary when dealing with challenges to the constitutionality of laws. This form of restraint has manifested itself in the principle of presumption of constitutionality.”
On this ground, the court held that if parliament had neither repealed nor amended Section 377, this reflected the will of the people, and unless it was proven that it violated the fundamental rights of the LGBT community, which in the court’s view had not been established, it would neither strike it down as unconstitutional nor read it down.
Two years later, the same court has set this principle on its head. An Act passed unanimously by parliament to spell out how the process laid down in Article 124 of the Constitution would be implemented has been struck down as unconstitutional. Reading the judgment, it is hard to escape the feeling that what it preserves is not the independence the Constitution conferred on the judiciary, but a privilege which it did not.
The Indian judiciary is the absolute antithesis of the Pakistan Army. On every issue but this, it has been the custodian and defender of the Constitution, the hero we deserve. On this issue, though, the common man is entitled to ask, in the language so beloved of the law, Quis custodiet ipsos custodes?
Satyabrata Pal is a former Indian diplomat. He served as India’s High Commissioner to Pakistan, and as a member of the National Human Rights Commission