We the People Have No More Say on the Constitution

By B R P Bhaskar

The Wire.in

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.

Within five months a majority of the state Assemblies ratified the bill. Thereafter the President, who was elected by an electoral college comprising members of both houses of Parliament and the Assemblies, signed the bill into law. With that, the procedure laid down to make changes in the Constitution was complied with fully, and the provision to set up the National Judicial Appointments Commission became a part of the Constitution.

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 (99^th 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.

A law unto themselves

BRP Bhaskar
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. -- Gulf Today, Sharjah, October 20,  2015.