THE Indian judiciary is one of the most powerful in the world. Judicial supremacy has become a fact of our constitutional life, at least from 1973, when the Supreme Court held by a slender and doubtful majority in the Kesavananda Bharati case that amendments to the Constitution would be struck down if they violated the basic structure of the Constitution. Any talk of such supremacy is quickly dismissed with the cliché that it is the Constitution which is supreme. This is countered with another oft-repeated saying, namely that the Constitution is what the judges say it is.

What constitutes the basic structure of the Constitution is a matter which judges decide on a case to case basis. This contribution is not a critique of the basic structure doctrine (BSD), a doctrinal development which I have consistently assailed over the years. The purpose of referring to the BSD is only to highlight the fact that the court wields vast political power (constitution making is a political process, and judicial review of constitutional amendments is of a political character).

Earlier in 1967, when the Supreme Court (again without unanimity) first asserted its supremacy in the Golak Nath case by holding that the power to amend the Constitution would not touch the fundamental rights, there were at least some spirited Members of Parliament who spoke up for parliamentary sovereignty. However, post-1973, there were only a few murmurs from the political class. In fact, judicial supremacy was seen as the sole saviour against the brute majority which Indira Gandhi attained after 1971. The self-serving constitutional amendments which she pushed through during the Emergency to save her election, only increased people’s gratitude to the Supreme Court for this doctrine. It struck down those amendments, applying the basic structure test. (It is, of course, another matter that the same powerful Supreme Court failed to safeguard the citizens’ right to life and liberty during the same Emergency.)

A weakened political class has over the last four decades meekly surrendered to judicial supremacy. It is this larger surrender that explains the acquiescence to lesser forms of judicial activism in Public Interest Litigation. It has often found it convenient to do so because it is easy then to avoid decision making, leaving it to the courts to decide. It is in this background that we need to examine the system of appointments to the superior courts, i.e. the Supreme Court and the High Courts, which interpret and apply the Constitution. Does the system of judicial appointments meet the requirements of democratic accountability?

 

Apart from the self-conferred power to strike down amendments to the Constitution, the superior courts have the power to strike down laws made by Parliament and the state legislatures. Laws can be struck down on two grounds: if they violate fundamental rights, or if the concerned legislature lacks ‘legislative competence’ (for instance, a Union law is made on a subject which falls within the state list, or a state law is made on a subject which falls within the Union list). This is a necessary feature of a system of checks and balances. But our judges are not elected and once appointed, are virtually irremovable. Surely, the system of checks and balances must apply to the process of judicial appointments. This must necessarily involve the legislature and the executive.

Article 124 of the Constitution as far as it is relevant for our purpose, reads:

1. There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than thirty other judges.

2. Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that –

(a) A judge may, by writing under his hand addressed to the President, resign his office.

(b) A judge may be removed from his office in the manner provided in clause 4.

4. A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

It is important to mention that removal for ‘misbehaviour’ refers to personal misbehaviour, not for constitutional transgressions. It is, therefore, essential that there is public accountability in the appointment of judges.

 

In the S.P. Gupta case (the First Judges’ Case, 1981), the Supreme Court held by a majority that among the opinion of the three constitutional functionaries, the opinion of the Chief Justice of India did not enjoy primacy over those of the other two in the matter of appointment of judges. This view paid due regard to plain language; ‘consultation’ was not an ambiguous word at all. It is also remarkable that this view was taken by the court just eight years after Kesavananda Bharati. It was a restrained judiciary. It needs to be noted that the judgment was delivered in December 1981 after Indira Gandhi had returned to power with a decisive majority, after two short lived and weak governments.

The Second Judges’ Case, i.e. Supreme Court Advocates on Record, was decided in October 1993, in far less authoritarian times. It was the minority government of Narasimha Rao which was in power. Now again by a majority, the court rewrote the Constitution. ‘Consultation’ acquired a meaning which those who gave us the English language and the tenets of constitutionalism could not have contemplated – all in the name of independence of the judiciary.

‘The question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the High Courts must be considered to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.’ And so, ‘The hue of the word "consultation", when the consultation is with the Chief Justice of India as the head of the Indian judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word "consultation" may take in the context of the executive associated in that process to assist in the selection of the best available material.’

 

And, ‘The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reasons indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.’ That little issue of democratic accountability did not pose too much of a problem for the majority.

 

The majority felt that the earlier majority view in the First Judges’ Case to the effect that the executive should have primacy (since it is accountable to people while the judiciary has no such accountability), ‘is an easily exploded myth, a bubble which vanishes on a mere touch.’ Why? Because according to the majority, there is no occasion to discuss the merit of any individual appointment in the legislature on account of the restriction imposed by Article 121 and 211 of the Constitution (these provisions prohibit discussion in legislatures on the conduct of a judge, in the discharge of his duties. Their relevance to the question of democratic accountability is far from clear).

‘On the other hand, in actual practice the Chief Justice of India and the Chief Justice of the High Courts, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant bar.’ And, of course, it is the judges who are best equipped to assess the suitability of lawyers to be on the bench because it is the courts which are the arenas where they perform. In other words, the technical competence of lawyers could best be appraised by judges.

To soften the effects of the rewrite came another rewrite. The opinion of the Chief Justice of India did not mean the individual opinion of Chief Justice of India, it meant his opinion formed collectively, that is to say, after taking into account the views of his senior colleagues, ‘who are required to be consulted by him for the formation of his opinion.’ This was the court’s gift to the Constitution of India; the ‘collegium’.

 

In 1998, during the second of the three Vajpayee governments, a presidential reference was made to the Supreme Court on issues arising out of the Second Judges’ Case (this was the Third Judges’ Case). Significantly, the court recorded at the outset the statement of the Attorney General that the Union of India was not seeking a review or reconsideration of the judgment of the Second Judges’ Case. The reference was mainly on the nitty-gritty of the collegium system and how it was to be worked. Here was a respectful government not wanting in any way to be seen as questioning the independence of the judiciary. Among other things, the court decided to increase the size of one of the collegia (for the appointment of the judges of the Supreme Court and for transfer of the High Court chief justice or the High Court judges) from three to five. A judicially created constitutional institution was redefined, this time in the course of an advisory opinion to the President!

In a recent public interest litigation, the collegium system was questioned. Refreshingly, the Attorney General (and presumably with the consent of the present government) supported the petitioner, saying that the Second and Third Judges’ Cases require reconsideration. However, the petition was ultimately dismissed with the Supreme Court holding that the present system merited no change.

 

Those who created the collegium do not, even in hindsight, acknowledge the constitutional overreach which the judiciary has done in asserting primacy. While acknowledging the failure of the collegium, they are defensive. Every system needs good men and women to work it, they say, and it is too bad that successive collegia have failed the nation. There is more to judicial appointments to the superior courts than mere legal acumen. And there is more to it than mere seniority. Social philosophies, gender sensitivities and balances, and inclusiveness are not matters which ‘self-perpetuating oligarchies’ can be completely relied upon to take into account. Nor is the concept of manpower planning, as can be seen with the many instances of short term chief justices.

It will soon be twenty years since the creation of the collegium and forty years since Kesavananda Bharati. The former flows from the latter; a truth which is not obvious and hence not recognized. If the contours of the Constitution are to be decided by the judiciary, and Parliament accepts this fact, it will have no principled reason to object to the court creating a new constitutional body for the sake of its own independence.

Over the years, the idea of a broad based National Judicial Commission has surfaced from time to time. A consensus may be round the corner. But the focus is more on the many failures of the collegium system and less on the fundamental principle involved. It is, therefore, time that parliamentarians start rethinking their position on both Kesavananda Bharati and Supreme Court Advocates on Record, and reclaim the shared space of the Constitution.