Ending judicial self-propagation

BRP Bhaskar

Gulf Today

India has the dubious distinction of being the only country where judges appoint judges. This was not what the Constitution provided for. The Supreme Court converted the higher judiciary into a self-propagating entity, exercising its right to interpret the Constitution.

The Constitution envisaged a system of mutual checks and balances to keep the Executive, the Legislature and the Judiciary on the right path. It vested the power to appoint judges of the Supreme Court and the High Court in the President in consultation with the Chief Justice concerned. Since the President acts on the advice of the Council of Ministers, the Prime Minister’s was the last word.

The Supreme Court reordered things through three judgments, delivered between 1981 and 1998. It whittled down the Executive’s role in the appointment and transfer of judges and made the Chief Justice’s the last word. The act of aggrandisement did not provoke much criticism because few believed the government’s intentions were pure.

Judicial inroads into the realms of the Legislature and the Executive began when they became weak after the death of Prime Minister Jawaharlal Nehru. In the first post-Nehru election in 1967, the Congress retained power but it lacked the two-thirds majority in the Lok Sabha required to pass a constitutional amendment. That year, in the Golaknath case, the Supreme Court ruled that Parliament did not have the power to amend the fundamental rights chapter of the Constitution.

In several previous judgements the Court had held that Parliament had unfettered power to amend the Constitution. After leading the Congress to a resounding victory in the 1971 elections, Prime Minister Indira Gandhi amended the Constitution to reassert Parliament’s right which had been extinguished by the court.

The Judiciary now moved one step backward. In the Kesavananda Bharathi case, the Supreme Court conceded that Parliament could amend all parts of the Constitution, including the fundamental rights chapter. At the same time, by a 7-6 majority it imposed a restriction: the amendment should not alter the basic character or essential features of the Constitution. These features were not identified or defined.

In both the cases the court relied on borrowed concepts. To save previous amendments in the fundamental rights chapter which the court had upheld, the Golaknath judgement applied the US principle of prospective overruling. The basic character concept was taken from a Pakistani judgement. While the Pakistani court invented it to limit the power exercisable by a military dictator the Indian court applied it to restrict the authority of democratically elected governments.

When the time came to appoint a new Chief Justice, Indira Gandhi overlooked the seniority of three judges who were part of the majority in the Kesavananda Bharati case. This was widely seen as an attempt to discipline the judiciary. The superseded judges resigned.

In the last 65 years Parliament has amended the Constitution about 100 times. The number of times the Judiciary has amended it through the process of interpretation, as in the Golaknath and Kesavanand Bharati judgements, remains untabulated. The most daring of the judicial amendments came through the verdict in the Judges cases.

The first of these arose after Indira Gandhi returned to power following the collapse of the Janata government. In it, the Court conceded primacy to the Executive in processes relating to appointment and transfer of judges. In the second case, which came up when PV Narasimha Rao’s minority government was buying up majority support, the Court granted primacy to the Chief Justice of India but laid down that he should act in consultation with a collegium comprising his two seniormost colleagues.

The Court’s third verdict was the opinion it rendered in a Presidential reference in 1998, when AB Vajpayee was heading a coalition of more than a score of parties. While asserting the CJI’s primacy, it raised the strength of the judges’ collegium from two to four.   

Last August the Narendra Modi government pushed through the two houses of Parliament a bill to scrap the collegium and set up a National Judicial Appointments Commission with the CJI as the chairman and two seniormost judges of the Supreme Court, the Law Minister and two eminent persons, who will be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition, as members.

The new system will end judicial self-propagation and provide the Judiciary and the Executive equal voice in the appointment of judges. Its constitutionality has been challenged in the Supreme Court. Hopefully, the Court will realise that the collegium system which it created is wholly undemocratic and the time has come to do away with it. -- Gulf Today, April 28, 2015.