The question over the process that is to be adopted for the
appointment of members of judiciary is nothing new in India. Right from the
First Judges case[1],
when the matter was for the first time seized upon by the Supreme Court, the
debate on this subject remains quite unsettled, with deleterious effects on the
executive-judiciary relationship. The recent move by the executive to alter the
situation in a grand manner vide the 99th Constitutional Amendment[2]
and the consequent National Judicial Appointments Commission Act[3],
to institutionalize the process of appointment has bought in the executive and
judiciary into direct confrontation, resulting in the amendment being struck down by the Supreme Court
of India as unconstitutional for its violation of ‘basic structure’ of the
constitution.
The judgement[4]
though seems to be doing its job in protecting the independence of judiciary,
the fundamental proposition that it puts forward raises more questions than it
proposes to answer. Deciding over the question of constitutionality of the said
amendment it has traversed much more than what was required of it, defeating
the very principles that it professes itself to be a guardian of. In the name
of protecting the ‘independence of the judiciary’ it has promoted itself to
hegemony, browbeating the other two legs of the federal structure that the
constitution establishes. Though one cannot in any manner assure that the
members of the legislature and executive are the vanguards of ethics and
morality; however that does not consequently make the judiciary a messiah who
is beyond reproach. Though the Supreme Court has placed itself in a lofty
summit of unreachable proportions, through this ruling, it is still based on
very shaky grounds. The fact that the Second[5]
and Third[6] judges
case that the present verdict has relied upon itself is based on a stretched
interpretation of the Articles of the Constitution has been lost in the
rhetorical bashing of the polity.
The mind set with which the conclusion was arrived at had
made them defy certain constitutional logics in the process. For example in the
First and Second Judges case, the manner in which the term “consultation” used
in Articles 124, 217 and 222 of the Constitution, which concerns with the
appointment and transfer of members of Higher Judiciary, has been interpreted
by the Supreme Court, expanded its scope much beyond what was actually intended
by the drafters and included the consultation of Chief Justice and subsequently
the collegium of judges as must, thereby assigning the ‘primacy’ to the opinion
of Chief Justice. This has to be seen in the light of the fact that the answers
arrived at were merely a result of all the extended interpretation that were
crammed into the relevant articles of the Constitution. The present verdict,
going a step further, has conferred the all compassing power to itself to
decide over the matters relating the appointment of members of higher
judiciary, making itself a sole authority have a say over the process.
The principle upon which the verdict has been arrived at
merely makes it all too obvious, the desperation to protect its exclusive say
in this domain. This has made them to go to unheard of lengths to substantiate
it. Take this for example. With the purpose of showing that any degree of
involvement of other legs of the democracy in the process will cause a
prejudice against its independence, the notion ‘theory of reciprocity’ has been
exploited. As per this theory in a situation wherein a judge is nominated to
the position by the executive, once he attains the post, he feels himself
indebted to them. The gratitude that the judge finds prejudices his decision
making process. To quote a passage “In
the existing Indian cultural scenario, an act of not reciprocating towards a
benefactor, would more often than not, be treated as an act of grave moral
deprivation. When the favour extended is as important as the position of
judgeship in the higher judiciary, one would best leave it to individual
imagination, to determine the enormity of the reciprocal gratitude and loyalty.”[7]
The very concept is at the best a conjecture but it is stupendous to draw a
conclusion that this causes a violation of the basic structure of the
constitution. How much ever the possibility of the executive and legislature
being morally corrupt lingers over us it is still a constitutional morality to
involve them at some level. The Constitutional Assembly has never intended the
independence of judiciary to mean the primacy of judiciary. The ostensible
suspicion that the judiciary through this verdict is casting upon the executive
is no different from the executive misdemeanour of the past when out of turn
elevations in the Supreme Court were made, for which vigorous references were
made in this verdict. It is ironic to know if the Constitutional principles
warrant the degree of independence to be of a magnitude that the present
verdict interprets it to be then the judiciary itself has become the potentate
that it is there to take control of.
The ideals
that is sought to be preserved under the Constitution cannot be done single
handedly by the judiciary and it never was the intention of the drafters too. It
seeks for an eclectic mix of the three arms of the federal structure in its
functioning. The executive judiciary antagonism that is perpetrated through
this verdict does not bode well for the nation. Doubtless it can be agreed that
the amendment that was sought to be introduced is not the best way to take
forward the much needed reforms in the process of judicial appointments, the
judiciary has committed a grave error in placing itself in a rather too high a
moral ground in the process of declaring it unconstitutional. I believe the
present verdict draws its inspiration from the moral compass that guided the
judiciary at the darkest hour in our democracy during the periods of emergency.
Without a shadow of doubt it is the same that saved us all from the impending tyranny
of the then executive. But to continue having the same attitude will defeat the
very constitutional principles that it is product of- an irony of twisted fate.
If not anything else at the least this verdict has given rise to a fresh debate
over the need for reforms in the present process of judicial appointments. The
judiciary must take a note of this to fix the functioning of its self, for the
opportunity is ripe to introduce much wanted changes towards the accountability
and transparency.
[1] S.P.Gupta v. Union of India, 1981 (Supp) SCC 87
[2]
Constitution (Ninety-ninth Amendment) Act, 2014, online: India Code,
Legislative Department <http://indiacode.nic.in/coiweb/amend/99th.pdf>
[3]
National Judicial Appointments Commission Act, 2014, online: India Code,
Legislative Department <http://www.indiacode.nic.in/acts2014/40_of_2014.pdf >
[4] Supreme Court Advocates-on-Record Association and
another v. Union of India- Writ Petition (Civil) No. 13 Of 2015
[5] Supreme Court Advocates-on-Record Association v.
Union of India, (1993) 4 SCC 441
[6]
Re: Special Reference No.1 of 1998, (1998) 7 SCC 739
[7] Supreme Court Advocates-on-Record Association
and another v. Union of India- Writ Petition (Civil) No. 13 Of 2015 at ¶ 164
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