Extracts from the Book ; Appointing our Judges: Forging Independence and Accountability

Apparently a great many people have forgotten that the framers of our Constitution went to such great effort to create an independent judicial branch that would not be subject to retaliation by either the executive branch or the legislative branch because of some decision made by those judges'.                                                                       

Sandra Day O'Connor

The centripetal force, in the 1030 page  decision of the Constitution bench of the Supreme Court, is undoubtedly the independence of judiciary. Without independence of judiciary, no meaningful democracy can sustain. This in effect is the central theme of the judgment which determined the constitutional validity of the 99th Amendment, 2014 and the National Judicial Appointments Commission Act, 2014.

No amount of gloss, by the government or its spokesmen,  could cover up the fact that both the Acts in effect seriously eroded judicial independence and sought to bring back political sanction and patronage  to judicial appointments. In an extraordinary bout of candour, the former law Minister H.R.Bharadwaj, on being questioned whether politicians were trying to control the judiciary,  his answer was an affirmative yes. "Is there any doubt about it? They have always been making attempts. I can show you examples of chief ministers and ministers trying to influence appointment of judges because they land in trouble very frequently". and he added " They want to have a convenient judiciary. But is it in national interest if you appoint convenient judges?" 

To those outside the orbit of the legal system, the government's intentions did not inspire much confidence either. The relentless attempts of the government to control appointments to the many public institutions like  ICHR, FTII, the Nehru Memorial Museum, to name a few, brought deep resentments as the appointees  were perceived as having no special qualification but subscribing to a political and cultural view point. These appointments  were already mired in controversy, protests, face-offs and confrontation. To add to this the government was seen as attempting to rewrite history and influence the narrative in other fields as well. The all-round lack of faith and the perception that a biased political view point detrimental to the nation  was being encouraged resulted in the scientific community, the historians, the litterateurs, the film makers returning of government awards as a sign of protest. From a very objective standpoint, there was no guarantee that the judiciary would not be molested in the clamour to appoint men and women sympathetic to the government or its philosophy.

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ON THE SPOILS SYSTEM

Khehar J. observed that "our Constitution does not envisage the spoils system" which rewards those who worked towards a party's victory "as an incentive to keep the party in power".  Its potential for destruction of democracy itself is immense. India is still a nascent democracy. It has to be remembered that India is perhaps the only postcolonial democratic experiment which has survived. Most postcolonial constitutions  have collapsed under political and sectarian violence or to the force of arms. In large measure the credit should go to the judicial system  which is viewed as apolitical. The credit is also due to the landmark judgment of Keshavananda Bharati where it was enunciated that basic structure of the constitution 'built on the basic foundation, that is, the dignity and freedom of the individual' was immutable. This in effect removed the threat of elected majorities destroying the rights which are treated as fundamental and a system of government which is democratic.

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THE AMERICAN EXAMPLE AN UNRELIABLE GUIDE

Time and again during the arguments allusions were made to the system of appointments in the United States. Subsequent to the judgment P.C.Chidamabaram stated, "It is nobody’s case that the US, Australia and Canada do not have independent judiciaries". Nothing could be further than the truth. It is  so completely naive of  the actual nature of the appointments process in America. The American Constitution, as it has been worked, gives immense powers to the President to appoint judges. In fact, judges are appointed by the President in the hope they will further his political philosophies in the judicial arena. In every politically charged litigation, the verdict of the judges is predicted on the basis of political affiliations. This in turn is predicted upon as to which President appointed them. This is   not exactly a healthy situation in the Indian context.

A particularly revealing passage by William Rehnquist a Chief Justice of the United State Supreme Court would baffle those who follow the Constitution here in India:

'thus a president who sets out to pack the court does nothing more than seek to appoint people to the court who are sympathetic to his political or philosophical principles... Yet the institution has been constructed in such a way that, because of the mortality tables, if nothing else, the public will, in the person of the President of the United States - the one official who is elected by the entire nation - have something to say about the membership of the court, and thereby indirectly about its decisions.

WHAT HAPPENS TO AN UNCONSTITUTIONAL STATUTE

Extensive arguments were advanced that the collapse of two enactments will not in any manner revive the Collegium system of appointments. The arguments obviously ignored a fundamental and a all pervading principle in constitutional law, that once an enactment is declared on constitutional the position which prevailed prior to the enactment would be restored. This principle has been lucidly explained by Laurence Tribe:

Or, as Justice Field declared in Norton v. Shelby County: "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." 

ON DANGERS OF UNCRITICAL RELIANCE OF IB REPORTS

The inputs of the government comes in the form of reports these reports which  can make or mar a candidate or even cast a stigma forever. Time and again, the government's use of the IB reports has been a subject of serious concern. The final arbiter on the character and integrity of the candidate is the Intelligence Bureau, which incidentally is not a statutory body. In fact they are outside the purview of accountability to even the Parliament. There is no legislation which makes them accountable to any democratic institution. It has been fraught with lack of transparency which when coupled with absence of legislative accountability has made it vulnerable  to political manipulation. The dangers of blind reliance to Intelligence Bureau reports was highlighted in a article:

"Does the political use of the Intelligence Bureau, India's domestic intelligence agency, increasingly pose a threat to Indian democracy? India's top intelligence agencies, including IB, Research & Analysis Wing (R&AW) and National Technical Research Organisation (NTRO) are outside the purview of Parliament and there exists almost no documentation that makes them accountable for their actions. The lack of transparency combined with no legislative accountability makes their intelligence reports vulnerable to political manipulation, be it in the case of Gopal Subramanium or Ashok Kumar, the HC judge accused of corruption by Justice Katju..."

IMPEACHMENT OF WILLIAM O DOUGLAS

It would not be out of place to this cite the impeachment of Justice William Douglas, in this discussion on the role of the IB. It exposes the unbounded power of governmental agencies engaged in information and intelligence collection and the devastating effect it can be put into. Douglas, a judge of outstanding caliber and courage, served for 37 long years as a judge of the United States Supreme Court. Douglas in his long and eventful career as a judge who took on a big business, environmental polluters, censors and other vested interests had come to accept the threat of impeachment as a fallout of his political and judicial philosophy. In 1953 he survived an impeachment trial which was launched after he voted to stay the executions of Ether and Julius Rosenberg. In evidence against Douglas being nonexistent did not stop the Republicans led by Richard Nixon, Mitchell and Gerald Ford to go down the path of impeachment no matter what damage it caused to the institution.         There is a poignant note Douglas makes in his autobiography on the role of the investigation agencies:

"As a result of Nixon's instructions to the FBI and the CIA, hundreds of documents concerning me were turned over to the house. The tempo quickened in the executive branch, so that some 40 federal agents spent an amount of time investigating me in equivalent to one-man working 15 years for eight hours a day"

it is easy to make a charge against a public official and put him to the test of defending himself. But when the accuser is the federal government itself with all its resources behind it, the person attacked is at a tremendous disadvantage. It costs money, and a lot of it, to transport eight lawyers across the country, put them up at hotels, pay telephone calls and all incidentals necessary to do the work. Over and above all that, there is the question of compensating the lawyers..... That raised a staggering problem as to how a salaried person can afford the luxury of these long-range investigations." 

TYRANNY OF THE ELECTED?

"The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections.

( Robert H.Jackson in West Virginia State Board of Education  v. Walter Barnette;  319 U.S.624)".

The judgment evoked sharp reactions from the political establishment. A case in point was the Arun Jaitley's remark, "the Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger.”

Time and again, the politicians are forever mounting the slogan of Parliamentary sovereignty and that they alone are empowered to make institutions  accountable. It's not difficult to see that merit is rarely the criteria when the government chooses its bureaucrats, lawyers, administrators, heads of public sector institutions, those heading academic and like institutions. It is more than obvious that only those loyal to the regime are rewarded. Harold Laski, the high priest of socialism and the most unlikely candidate, analysed the role of politicians in the appointments process to the judiciary. He was not charitable when he wrote ‘the average member of a legislature has no special qualifications for judging, and he is therefore likely to be swayed by political considerations irrelevant to the          problem’. A quarter century later, Nani Palkhiwala, wrote on similar lines, ‘the main infirmity of democracy is that the only job for which you need no training or qualification whatsoever is the job of governing and legislating’(Nani Palkhivala, The Constitution Defaced and Defiled, Macmillan 1974).

Every Constitution is enmeshed with the history of the nation itself. India, like most postcolonial democracies, has had the unfortunate constitutional history of attempts to curtail the independence of the judiciary. But the judiciary, often times, matched up with innovative resilience. The most remarkable was the iconic decision in Kesavananda Bharati which laid the foundation that 'basic structure' of the Constitution could not be destroyed or be  "a plaything in the hands of the majority". The basic  structure doctrine has time and again come into play preventing constitutional transgressions aimed at destroying the architecture of democracy.

POSTSCRIPT: IN DEFENCE OF FALI NARIMAN

During the NJAC hearing before the Constitution bench, Fali Nariman's  book 'Before Memory Fades: An Autobiography' in which he wrote the chapter ironically titled 'A Case I won - But I Would Prefer to Have Lost' was repeatedly quoted and  its passages were cited to dent the attack on  the constitutional amendment and the NJAC Act. Counsel after Counsel, argued that Fali Nariman himself, who was leading the attack on the constitutional validity, was not in favour of the Collegium system of appointments. While we lawyers for the petitioners watched with trepidation, Nariman did not defend himself. Perhaps his anxiety and energies were directed on the independence of the judiciary and how the basic structure was being jeopardised and independence of the judiciary undermined. However, there are very clairvoyant  judgments taking note of similar situations. The eminent counsel H.M.Seervai who argued before the High Court challenging the constitutional validity of the Public Premises Act,  was confronted similarly with a passage from his book. The judgment of Bombay High Court took note of the submissions and relied on an English precedent to come to the aid of the counsel and the author. The following passage from the judgment should put to rest the attacks against Fali Nariman which has now has moved from the Court room to the public arena:

"60. In reply to this passage, Mr. Seervai, the learned Counsel for the petitioners stated that he had indeed made observations in his book but at that stage, he had not considered the matter from the angle which he now does in this case and added that had he done so, his conclusion would have been the same as he is now canvassing before this Court. He further added that the words written by him are as an author and hence the value to be attributed would be the same as words written by any other reputable author, neither more nor less, and it was open to him in a given case to set forth matters in a correct perspective. In support of this submission, Mr. Seervai relied upon a passage from Cordell v. Second Clanfield Properties, the Law Reports, Chancery Division Vol. 2, 1969 page 9, at Pages 16 and 17 reading as follows :---

"I would here add one comment, in amplification of certain observations that I made when during the argument Counsel cited a passage from the 3rd edition of Megarry & Wade's Real Property. It seems to me that words in a book written or subscribed to by an author who is or becomes a Judge have the same value as words written by any other reputable author, neither more nor less. The process of authorship is entirely different from that of judicial decision. The author, no doubt, has benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the Judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law. This is true today as it was in 1409 when Hankford, J. said : "Home ne scaveroit de quel metal un campane fuit, bien batu, quasi diserit, le lay per bon disputation serra bien conus (Y.B. 11 Hen. 4, Mich., fo. 37); and these words are none the less apt for a Judge who sits, as I do, within earshot of the bells of St. Clements. I would, therefore, give credit to the words of any reputable author in book or articles as expressing tenable and arguable ideas, as fertilizers of thought and, as conveniently, expressing the fruits of research in print, often in an apt and persuasive language. But I would do not mere than that; and in particular I would expose those views to the testing and refining process of argument. Today, as of old, by good disputing shall the law be well known".

So much for the observations made by Mr. Seervai in his book, Constitutional Law of India".

Santosh Paul is an Advocate practising at Supreme Court.

The book can be purchased from here.