Last year the Lok Sabha, whose 543 members were elected on the basis of universal adult suffrage and thus directly represent India’s 1.2 billion people, unanimously approved a bill to incorporate in the Constitution a provision to set up a National Judicial Appointments Commission to pick judges for the superior courts. The next day the Rajya Sabha, all but 12 of whose 245 members were elected by the elected members of state Assemblies and thus indirectly represent the 1.2 billion people, approved the bill, again unanimously.
Last week, four learned judges, who represent none but themselves, said it is not part of the Constitution. Judges must continue to appoint judges, they declared. Anywhere else it would have been put down as judicial arrogance. In India, it is supposed to be affirmation of judicial independence.
The separate judgments of the five judges who examined the validity of the Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act is notable for several observations that militate against common sense.
Take, for instance, the assertion that the Judiciary can be independent only if judges appoint judges. There are several constitutional bodies, besides the Judiciary, which are required to function independently of the Executive. The Election Commission, the Comptroller and Auditor General and the Union and State Public Services Commissions are among them. Must they also not then become self-perpetuating?
No evidence that marginalised benefited
One judge argued that Executive participation might lead to exclusion of persons on grounds of sexual orientation. There is nothing on record to show that any member of the LGBT community – or for that matter any other marginalized group — came into the Judiciary through the judges-appoint-judges system, which has been operating for two decades.
Actually, there is no evidence to believe that even the Scheduled Castes, the Scheduled Tribes and Other Backward Classes, for whom special provisions exist in the Executive and Legislative branches, fared better in the Judiciary under the judges-appoint-judges dispensation than earlier. There is no need to dispute the widely held belief that under the original constitutional scheme, in which the Executive had primacy, the best candidates were not always picked for the posts of judges. But isn’t this true also of the judges-appoint-judges system?
Justice U.L. Bhat, who was Chief Justice of the Guwahati and Madhya Pradesh High Courts, writes in his autobiography that M. N. Venkatachalaih, the first Chief Justice of India to enjoy primacy in appointments, told him that his junior, Justice K. S. Paripoornan, was being elevated to the Supreme Court, bypassing him, since “my colleagues feel that you are irreverent to them”.
Justice Venkatachalaiah is one of the most highly respected former CJIs. Justice Bhat’s revelation suggests that even under him merit was not the first consideration. One of the judges on the bench, which heard the NJAC case has, in his judgment, referred to a couple of more recent and far worse choices.
Wrong choices are often the result of human fallibility, and the system cannot be blamed for them. An objective study will probably show that their incidence went up under the judges-appoint-judges system. This may have nothing to do with the system itself, and may be the result of the general deterioration in the standards of society.
Members of the Executive and the Judiciary come from more or less the same sections of the society. Any deterioration in the standards of society will naturally reflect in the composition of these institutions. If the Executive appears in poorer light than the Judiciary, it may be because politicians come under greater public scrutiny than judges.
Judiciary’s dismal record
The Judiciary has a dismal record in dealing with acts of misdemeanour in its ranks. Judges of a High Court whom the local Bar dubbed as corrupt and boycotted remained on the Bench without hearing any case until they retired. Even some CJIs have attracted serious charges but did not have face any action. Former Supreme Court judge Markandey Katju, in a recent Facebook post, said he had with him a dossier on Justice H. L, Dattu, the present CJI, and was ready to give it to any one willing to file public interest litigation. It is not clear why he wants someone else to bell the cat.
All the four judges who joined hands to throw out the NJAC agreed that the judges-appoint-judges system had problems which need to be set right. After throwing out the NJAC, the bench decided to sit again on November 3 to deal with what the presiding judge described as the “surviving issue of grievances as to working of the pre-existing system”. What the bench plans to do is not a judicial function, but one of law-making – more precisely one of further amending the constitutional provisions regarding appointment and transfer of judges.
The Constitution, in its original form, was prepared by an Assembly with 305 members. They were not elected representatives of the people. As many as 229 of them were elected by provincial Assemblies of British India, whose members were elected on the basis of limited franchise. Seventy represented the princely states. Many of these states had no Legislatures and their representatives were nominated by the ruler. Only seven members – six from Travancore and one from Cochin – could claim to truly represent the people, because their Assemblies were elected on the basis of adult suffrage.
The Constituent Assembly members assumed theirs was a fully representative body and enacted the Constitution in the name of the People of India. They did not hand over the Constitution they had enacted to the President or the Executive or the Legislature or the Judiciary. They entrusted it to the People. Note the words of the Preamble: “We the People of India ….hereby adopt, enact, and give to ourselves this Constitution.”
We the People were thus the makers of the Constitution as well as its custodians. But not any more.
We the People in our Constituent Assembly, who enacted the Constitution, laid down that We the People in our Parliament will make changes in it whenever necessary. The Constitution worked in that manner for two decades, during which period the Judiciary, when called upon to interpret its provisions, upheld Parliament’s unfettered right to amend it.
Then, the Judiciary changed its tune. It ruled that Parliament could not make changes in the Fundamental Rights chapter. Later, it changed its stand. It said Parliament could amend any part of the Constitution, including the Fundamental Rights chapter, but not in such a manner as to alter its basic structure.
With the basic structure remaining undefined, the Judiciary – more precisely, a bench of three to nine judges — has the unfettered right to say not only what the Constitution is but also what it should be. This is a perversion of parliamentary democracy and it is time to think of ways to restore the role of We the People as makers and keepers of the Constitution.