Essential attributes of State are Government, Territory, Sovereign and Population. Sovereign power, with the evolutions of State, got distributed in Executive, Judiciary and Legislature. Each component acted as countervailing forces against the other to prevent accumulation of Sovereign power in one entity. ‘Separation of Power’ of Montesquieu lends credence to this system with a political philosophy contained in his ‘Spirit of Laws’. We, with rich heritage of this philosophy from the British, engrafted in our Constitution, this remarkable barriers of governance or, more precisely the field of play of three pillars of governance. The ‘basic structure theory’ churned out by the Constitutional Court has given judiciary an insulated status by coining ‘independence of judiciary’ as one of the several attributes of ‘basic structure of Constitution’.
With the doling out of Sovereign Power in three limbs, the election of functionaries to man the respective realm became inevitable. Civilised democracies elect by voting their Legislators to sit in the Legislature. The Legislators, in turn, choose the Executive (Council of Ministers). The Executive, with consultations of Members of Judiciary, selects the Judiciary. In the entire exercise being carried out in this way, the Will of the People is reflected in the crowning process of the three limbs of Sovereign. Consciously this paramountcy of Will of the People is given recognition in the Indian Constitution. Articles 124 and 217 of the Constitution speak about the appointment of Judges of the Supreme Court and High Courts respectively. Supreme Court Judge was conceived to be appointed by the President (Executive Head) in consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary. But in the case of appointment of Supreme Court Judge, there must be mandatory consultation with Chief Justice of India. Likewise, in the appointment of Judges of various High Courts, the President shall consult the Chief Justice of India, the Chief Justice of the concerned High Court and the Governor of the State. With the commencement of the Constitution, this Will of the People worked efficaciously through appointment procedure moulded by the Memorandum of Procedure. The Executive, through the Ministry of Home Affairs, often initiated the process of appointment by nomination and elicited the views of the Chief Justice of India in the matter of appointment of Supreme Court Judges. Sometimes the nomination came from the Chief Justice of India, which also gets approbation at the Executive Head. The politicians at the top echelons of Executives on those days, with their impeccable integrity and uncompromising values and ethos on constitutionalism and democracy, never went astray in their commitment to people of India to make independent India a Role Model to emulate for other Nations. Persons with proven efficiency, expertise in law, legal acumen and, above all, with utmost rectitude, were chosen to the constitutional Courts. In turn, these gems on Judiciary contributed immensely to the People of India by giving flesh and blood to the Constitution by their interpretations to various Articles of Constitution. Full reflection of the political philosophy encapsulated in the Preamble to the Constitution found enlarged in its scope and amplitude in every exercise of interpretation. The development of Constitutional Law in India is from the brains of these hand-picked lot of our politicians, who imbibed values and ethos from national movements. The primacy of Executive in the selection process was never frowned up on as the repository of power of appointment, i.e. the Executive Heads, could not go wrong.
‘The Separation of Power’ doctrine started showing signs of malaise, when Prime Minister Indira Gandhi was turning totalitarian. For consolidation of power, Mrs. Gandhi started aggrandizement up on Judiciary. On June 12, 1975 election of Indira Gandhi was set aside by the Allahabad High Court and she could continue as Prime Minister based on stay granted by the Supreme Court with condition that she shall not take part in deliberations in Parliament and vote. In the historic ADM Jabalpore case, Justice H.R. Khanna delivered a dissenting judgment holding that there cannot be any suspension of fundamental rights during the Proclamation of Emergency and a writ of Habeas Corpus will lie against illegal detention. This minority judgment was not to the liking of Mrs. Gandhi for which Justice Khanna had to heavily pay for. Though by convention, constitutional courtesy and hitherto followed cordiality of Judiciary and Executive, Justice Khanna who was the senior most Judge had to elevated as Chief Justice of India as per the norms of seniority, President on the advice of council of Ministers headed by Mrs. Gandhi, appointed Justice M.H. Beg as the Chief Justice of India in January 1977. That was an onslaught on the cordiality and camaraderie of two great organs of State – the Judiciary and Executive. The consultations envisaged in the Constitution became a customary nod of servility. Independence of judiciary was turning to be interdependence and imposed captivity. People of India became sceptical at this Executive hegemony. The electoral rout of Mrs. Gandhi in 1977 and period of two years thereafter, witnessed a damage control exercise on the Constitution by the Janata Government.
When Mrs. Gandhi voted to power in January 1980, the euphoria of Constitutional reforms and restructuring came to an end. Mrs. Gandhi’s majority in the House of People was 2/3rd which was enough to impose upon all for further arrogation of all powers to herself. The power of appointment of Judges came for deliberation directly in S.P. Gupta Case, popularly called the Judge’s Transfer case. India witnessed a resurgent and retaliatory Indira Gandhi in an out-and-out vindictive mood. She invoked Article 356 to dismiss the Janata Party lead State Governments in one lot, which enjoyed majority. The blatant misuse of Article 356 did not augur well for other strong limbs of State. Single Party Rule with Single Person as a totalitarian, with prospects of impeachment, was enough for holding Judiciary under leash. As expected, in S.P. Gupta case, the Supreme Court on 30/12/1981 upheld the primacy of Executive in the matter of appointment of Judges to Constitutional Courts. It was further held that the opinion of Chief Justice of India can be brushed aside for ‘cogent reasons’. Thus the Executive, manned by Single Party Rule, resisted the unspoken desire of the Judiciary to arrogate to itself the power of appointment.
But by late 90’s, scenario changed when India was heading for fractured verdicts and minority governments. Politicians got vulnerable and timid as innumerable scandals involving them erupted. The Jain Hawala case, which originated in 1991, brought under its net top political leaders of the country, cutting across political barriers. Prominent leaders like V.C. Sukla, Shiva Sanker, L.K. Advani, Balram Jhakkar and Madanlal Khurana, all came under the unsavoury allegations of periodical payments by way of bribery. The prosecution proceedings made them susceptible and imbecile. The minority Government lead by P.V. Narasimha Rao was not an imposing intimidation for the Judiciary. The Executive was apparently weak with frailties of corruption charges and it was more preoccupied with mobilisation of its energy towards bringing in economic reforms. The entire political spectrum, including Ruling and Opposition Party leaders, came under teeth of prosecution. Judiciary acted with retrieved might and asserted its supremacy and primacy in the matter of appointment of Judges. The Second Judges Case, Supreme Court Advocates-on-Record Association Vs. Union of India, was decided in 6/10/93 in the backdrop of these volatile political situation.
The political spectrum again emaciated by further revelations of corruption. The JMM Bribery case came as thunder bolt to P.V. Narasimha Rao. CBI questioned Narasimha Rao on 4/9/96 and he was charge sheeted. On 16/1/96, the Supreme Court ordered to set up Special Hawala Court to try the hawala offenders. When the entire political pantheon was in the labyrinth of further controversies and corruption charges, the Supreme Court evolved the ‘Collegium System’ of appointment of Judges in In Re Special Reference on 28/10/98. The Judiciary usurped the power of appointment completely to the exclusion of Executive. The political ambience was conducive for the Judiciary as the period was marked by political instability with country going for snap polls, one after the other. A fragmented mandate made the Executive too weak to be trampled up on by Judiciary. The role of the Executive was reduced to a ritualistic giving of stamp of approval.
With the Judiciary assuming role of appointment, the indirect deference to the Will of the People slowly waned. Widespread complaints of nepotism, systematic exclusion, emergence of hereditary rights to appointment and, adding woes, plummeting deterioration in the quality of adjudication were the tangible results of Collegium System. A larger section of the Bar felt alienation in appointment process, where scions from incumbent or retired Judges were found as favoured lot. Judgments which were rendered by Judges who imbibed constitutional and political philosophy of the Nation during pre-collegium era were atop on its perspectives. The post-collegium era is predominantly marked by ‘perception driven judgments’. No legal classics like, A.K. Gopalan Case, Kesavanandan Bharathi Case, Maneka Gandhi Case or Indra Sawhney Case (Mandal Case) and the like sprang up in post-collegium era. The remedy proved worse than the disease.
By the beginning of this decade, there emerged unanimity and broad consensus among political parties for contriving a mechanism, where there is greater or equal say for Executive in the matter of appointment of Judges of Constitutional Courts. The system prevailing in developed democracies are pointer to a greater participation of polity and civil society in the appointment of Judges of Constitutional Courts. In the USA, the Judges are appointed under Article III of its Constitution to the Supreme Court, Federal Courts and District Courts by the President with approval of Senate. Apart from impeachment, there is another mechanism for removal of the Judge by issuance of a writ of Scire facias for not maintaining “good behaviour”. In the U.K., from 2006, the appointment of Judges is made by a 15 member Judicial Appointment Commission. In the 15 member Commission, only five Judges are from the higher judiciary. 2 members are from Subordinate Judiciary and Tribunal. The remaining 8 members are from the Civil Society and Government. Australia makes another example for participatory and consultative process in the appointment of Judges where appointments are made by Governor General-in-Council. All these systems ensure transparent appointment process where nominations are made, objections are called for and fool proof comparative assessment of merits is done in full glare of public attention. In India, now, the Constitution 121st Amendment provides for Constitution of NJAC (National Judicial Appointment Commission) to replace the Collegium System of Appointment. National Judicial Commission Act has come into force on 13/4/2015 with the Notification of Commencement. Now the vires of the Constitution Amendment and the NJAC Act are under challenge before the Apex Court.
The passing of Constitution Amendment and the NJAC Act shows the reassertion of Executive of its supremacy. The Bills were passed with a near unanimity. The instantaneous and hassle-free ratification of Constitution Amendment by almost all State Legislatures is indicative of the expression of Will of the People across the country. Unlike other Constitution Amendments, 121st Amendment required ratification by not less than 50% of the State Legislatures under Proviso to Article 368(2) of the Constitution of India. The perceived import of the said exercise is quintessentially the expression of collective Will of the People of India, who have given unto themselves this Constitution. The People of India, in unison, demand for a change in the system of Appointment of Judges with its greater participation in the Appointment Process. People of India clamour for systemic change in the Appointment process with the desire to keep pace with the more participatory system prevailing in the civilised countries. How far the “basic structure” sword can be brandished by the Supreme Court to cut at the root of the Will of People of India? The emergence of Single Party Rule and iconographic leaders on the political spectrum will spell doom for the Judiciary in setting at naught the NJAC. Apropos to note that ‘basic structure theory’ was evolved in cases for testing vires of Constitution Amendments which were passed with notable divisions. Amendment providing for NJAC is essentially and virtually a re-enactment of the Constituent Assembly sitting again for introducing what was originally lacking in the Constitution. Adoption by Parliament and all State Legislatures by unanimity is in reality assertion by the Will of the People, who have given unto themselves their Constitution. Expression of collective Will of the People is so sacrosanct in a democracy and it cannot be lightly shattered down by coining new legal jargons or philosophies.
Adv. S.Sanal Kumar is a Lawyer practising at High Court of Kerala.