‘I personally feel no doubt that the Chief Justice is very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and prejudices which we as common people have. To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we not prepared to vest in the President or the government of day. I therefore think, that is also a dangerous proposition.’
– Dr. BR Ambedkar, President, Drafting Committee of Constitution of India
What Kiran Rijiju, the Law Minister in Narendra Modi-led NDA Government said on Monday this week in an event Sabarmati Samvad organised by Panchjanya, a weekly magazine of the RSS, was no different from the views expressed by Dr Ambedkar in Constituent Assembly debate on 24th of May, 1949. The public discontent towards the judiciary which is now more and more visible on public platforms emanates largely from the opacity of the process through which the Judges are appointed in the higher courts. Rijiju also spoke of the public discontent against the judiciary on various platforms and the plea made by the same judiciary to gag it which presided over the violence perpetrated over constitutionally cleared laws like the Farm Laws calling it an expression of dissent.
The arbitrariness of the judiciary has been pronounced and when people watch it, their trust in the judiciary is shaken. When they find that the beheading of a Kanhaiya Lal does not shake the conscience of the highest court as much as a beard cut of a man from a particular faith, they begin to question the competence of the learned men who act in a partisan manner while throwing both Constitutional and Mahatma Gandhi at us all the time. The biggest danger for the law is the loss of faith of the society that it intends to govern, and the biggest cause of this loss of faith is arbitrariness in law. When laws are very clear, and the constitution is very clear, how come a two-member bench of the Supreme Court has a split decision on Hijab in a public institution? Either the law is very bad, or the Judges must be very incompetent to interpret the law in totally diverse directions. A third possibility also arises which is even worse than the two mentioned, they are not interpreting the laws, they are hardening their opinions. This brings to mind the question of the way Judges are appointed.
We find that this had been the cause of concern since the time the Constitution was written. Since the judges are always keen to project themselves as the last guardians of the Constitution, it is pertinent to note what the Constitution says about the manner in which Judges are appointed and whether the system that we have is constitutional at all. During the Constituent Assembly debates, the point was seriously debated and the three models were deliberated upon for the appointment of judges- Appointment by the Crown as in Great Britain (the Crown would be the elected President of India as equivalent here), the appointment by Senate as in the US, the appointment by the Judges, as is in practice right now under the Collegium system. As per the quote given by Dr Ambedkar, the last option was ruled out as very dangerous by the Constituent Assembly. Thus, under Article 124 of the Constitution, it was pronounced that:
‘Every Judge of the SC should 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 High Courts in the state as the president may deem necessary for the purpose and shall hold office until he attains the age of Sixty-Five.’
To any person with a basic understanding of the English language would understand two things, while the Makers of the Indian Constitution, tried to keep the appointment of judges free from the on-ground party politics, they still tried to make way for the appointment of the judges reflective of the voice of the people through the elected head of a democratic Government, the President of India. To ensure that the President was ably advised by the legal minds in the process, they kept the provision for consultation with the Judges of Supreme Courts and High Courts but left it at the discretion of the President. The choice of words made it amply clear that the Constitution did not make the consultation with the legal luminaries binding on the elected president of Democratic India. The direct corollary of this would be that any mechanism in contradiction to this and the rights of the President of India would be unconstitutional, no matter what colour we paint it in.
The system worked well when it did, except when it did not. When in times of Emergency, the judges aligned with the political masters of the day and Justice HR Khanna became the lone dissenting voice, he was quickly sidelined by Mrs Indira Gandhi who got seniority superseded and appointed her favourite judge as the Chief Justice of India. Justice HR Khanna resigned with disgust and disappointment. The good thing was that Indira was subject to democratic scrutiny and was thrown out of power. The people had the power to right the wrongs as the eventual power of the appointment of the judiciary was with an elected President.
In 1981, the system came under question when SP Gupta Vs. President of India case came up in the Supreme Court before a Seven-Judges Bench. The petition (s) were brought in to protest a circular from the then Law Minister of the Government of India, Shiv Shankar seeking the implementation of a policy for implementing the judges out of their home states. While considering various aspects of the questions raised in multiple petitions, the Bench also deliberated on where is the power to appoint the Judges of the High Court and the Supreme Court located. The bench then answered this question with the conclusion that the Chief Justice of India, the Chief Justice of the High Court and others have only a consultative role and the power of appointment rests solely and exclusively in the Central Government. The bench recorded on the contention of the petitioners that on the matter of judicial appointment wherein it is argued that the opinion of the Chief Justice of India should have primacy, the Seven-member Supreme Court Bench responds unequivocally that they are unable to accept this contention. The bench further proclaimed that the ultimate power of appointment rests with the central government and that is in accord with the constitutional practice prevailing in all democratic countries. The bench also agreed to this is left to the discretion of the Central Government whether or not they need the consultation of one or more of the judges of the Supreme Court or the High Court.
Another case was brought in October 1993 by the Supreme Court Advocate-on-Record Association seeking clarification on the point of the primacy of the Chief Justice of India in the decision regarding the appointment of Judges. While as we have seen this point was expressly deliberated and answered in 1981 by a Seven-Member bench, another nine-member bench was constituted to re-examine the question. The previous petitioner, SP Gupta, a lawyer, supported by other lawyers like Kapil Sibal, Shanti Bhushan, and Ram Jethmalani argued that the decision of the previous bench was incorrect and that the CJI should hold primacy over the appointment of judges. In this case, in some roundabout way, an ‘assumption’ was made that while earlier there was no provision for consultation with the Chief Justice in the Government of India Act, 1935, this provision must have been made because the Constituent Assembly must have felt that the Chief Justice is best equipped to know and assess the worth of the candidate. Even the discretionary power of the president which was granted by the Constitution in this regard was diluted by claiming that the right is only given to act in the event of an error of judgement on the part of the Chief Justice of India, not as a position rather as a person. Using presumptions and assumptions, the bench decided that the deciding authority has lesser primacy than the consulting authority. The judgement makes great reading for those who still believe in an objective and neutral judiciary. This is where the tide began to turn with the unelected judiciary claiming to have unquestioned supremacy in the democratic scheme of things.
By 1998, the third Judges Case, wherein the President of India sought the opinion of the Supreme Court on the same question for the sake of clarity, the die was cast. The Executive was totally nudged out. The assumptions made by the 1993 bench were now formalised and the bench even placed the initiation of the process of appointment of the judges on the Judges and made the consultant the final decision-maker with the judgment which said that No appointment of any judge to Supreme Court or any High Court can be made unless it is in conformity with the opinion of the Chief Justice of India. The Nine-Member Bench not only junked the first judgement but declared itself the final authority on how the relevant terms in the constitution ought to be interpreted and read claiming that the constitutional scheme must now be understood and implemented in the manner indicated herein by us. The choice of words and the tone and tenor of the language are quite telling. This is when the Collegium system was formalised based on the judiciary which interpreted the Constitution as they deemed fit, gave themselves supremacy and devised a system to allow judges to appoint the judges in an absolutely arbitrary manner without any constitutional supervision.
In the United Kingdom, to ensure that the absolute power over the appointment of judiciary lies neither with the Judges nor with the Crown, a Judicial Appointment Commission was constituted. In India too, some effort was made to revert to the original thoughts of the makers of the Constitution of Independent India with the Constitutional Amendment to create a National Judicial Appointment Commission to remove arbitrariness in the appointment of Judges, to bring transparency in the process and to reduce the despotic element in the current scheme of things which reflects in the statement of Justice Krishna Iyer who said about the collegium system-
‘There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, a sort of anarchy prevail.’
In 2013, Law Minister Kapil Sibal tried to undo the harm which lawyer Kapil Sibal had done in 1993 by bringing a bill for an amendment to the Constitution (120th Amendment Bill) seeking to appoint Judicial Appointment Committee. ‘Appointment of judges is the role of the executive and not the judiciary’ said the then Congress Law minister, Kapil Sibal. It was put to vote in the Rajya Sabha and was cleared with 131 votes in favour. Under the NDA, another attempt was made when 99th Amendment Act, 2014 to the Constitution was brought in and the National Judicial Appointments Commission Act, 2014 was formulated and passed by both the houses of elected Parliament. This was challenged by the same petitioner who brought the dilution to the Constitution with a petition in 1993, the Supreme Court Advocate-on-Record Association. The amendment and the bill were struck down as unconstitutional. The Judiciary which was deciding on it had already decided that the Constitution ought to be interpreted only in the way that they direct so whether or not the decision was constitutional can hardly be debated. So when dumping the bill which had the CJI as head of NJAC and placed him equal to the president when the bench hides behind the same Constituent Assembly, interpreting the voluntary consultation as mandatory, who are we, the common citizens to question it?
In their judgement, they mention that the mandatory requirement for consultation with the Chief Justice of India has been done with. We may read and re-read the exact words of the CA debates and think whether it was mandatory for the President or was it when he deemed it fit. This is something for the judiciary to also ponder about, you cannot keep shutting people. Elected or otherwise, it is from the people that any judiciary derives its power. The Governments might have their compulsions to keep up appearances, but the people are watching. You cannot shut down the democratic rights of people by running to the same government which you pull up when the latter tries to control anarchic protests in the name of Constitutional rights. Human societies are precariously built structures which stand on very fragile things called faith. Raoul Berger wrote in Government by Judiciary an interesting observation which should be read by the Judiciary and people. He wrote :
‘How long can the public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as constitutional is itself acting unconstitutionally? Respect for the limits of power are the essence of a democratic society; without it the entire democratic structure is undermined and the way is paved from Weimar to Hitler.’
All the twisting and turning of the Constitutional History of the country to justify the changes will come to a nought once public trust is lost. These slow degradations are evident in the changes in the position regarding the declaration of the property of the judges over the year from mandatory to recommendatory to impossible as well, but let that be a story for another day. Currently, we need to introspect why the petition for genocide of Kashmiri Hindus gets thrown away but the petition on perceived hate speeches in specific states is considered. When a petition by certain environmentalists wanting the Courts to declare him as the President of India is also heard, one wonders how a democracy descends from sublime into absurd.
