The one institution that all Indians look up to for the protection of their constitutional rights is the Supreme Court of India. There were and are great judges comparable to their best counterparts in other parts of the English-speaking world. They protect a beautiful working Constitution fulfilling the aspirations of all sections of the society. The nation is grateful to this great institution. But on occasions, the apex court has gone against the better judgment of the people. It happened in the 1951 AK Gopalan case and later, in the now infamous AD M Jabalpur case whose ignominy is difficult to out-live. Now comes the National Judicial Appointments Commission (NJAC) case. The Constitutional philosophy in regard to the appointment of judges declared in Articles 124 and 217 has been banished to judicial wilderness by the apex court’s recent pronouncement. This is yet another occasion when we are reminded that the Supreme Court is final not because it is infallible, but rather it is infallible only because it is final.
In the Constituent Assembly debates in regard to the judiciary, Dr B R Ambedkar had declared that he was not willing to put exclusive trust in the wisdom of the judges in judicial appointments. He had pointed out that even the Chief Justice was another human being like all of us with one’s own strengths, weaknesses, likes and dislikes. Dr Ambedkar, therefore, made the task of choice of judges a collaborative one. Article 124 and 217 as they stood at the beginning of our Republic, dealing with the appointment of judges to the Supreme Court and the High Courts, respectively vest the power of appointment in the President who was required to consult the judiciary. The President here is only a symbol and a metaphor. He can act only on the advice of his Council of Ministers.
The declared Constitutional philosophy was the emphasis on executive responsibility. This is so all over the world. In the United States of America, other judges of the Supreme Court would not even know who was going to be appointed. That was only between the President and the Senate Judiciary Committee.
The judicial usurpation of the power started when the judges defined “Consultation” to mean “Concurrence”. This is how twilight slides into darkness, slowly and almost imperceptibly. That was the first step. Then, gradually over time, the usurpation of the executive role by the court became complete when in 1993, the Supreme Court installed the collegium system as the ultimate repository of the power to appoint judges. Some of the worst appointments have come through this system so much so that even the main architect of the collegium, Justice JS Verma, openly lamented his decision and called for its abolition. An eminent English jurist said that the Judgment made ‘Angels weep’.
Even in the present judgment, the Supreme Court judges have had to acknowledge the shortcomings of the collegium system. It is the tendency of all power to run to excess. The absolute power which the Supreme Court has given itself is no exception to this rule. But what demeans a nation of 1,200 million people is the blatant assertion of half a dozen judges to declare that they cannot trust the great Indian civil society, not even a couple of eminent Indians amongst it – to participate in the process of selection of judges. India has produced great statesman, scientists, engineers and great soldiers who by their contribution to the enrichment of Indian life are not less than a handful of judges in the matter of wisdom and patriotism. Great American judges have declared the need for an open mind to draw inspiration from the social wisdom of the people. Due deference to the wisdom of the representatives of the people is the judicial creed and philosophy that great judges are committed to. It is only the short-sighted men that deny themselves this lambent light of wisdom from Indian society.
The judges’ reservations on some men of politics may be pardonable; but reservations on the civil society, certainly not. The judges have done themselves no service by this myopic view of the richness of Indian public tradition. This is blissful ignorance.
There was a commission headed by eminent former Chief Justice Sri M N Venkatachaliah which reviewed the workings of the Constitution. That commission also suggested this substitution of the collegium system by a set-up similar to the present NJAC.
I must congratulate the Union Finance Minister Arun Jaitley, himself an eminent constitutional lawyer, who has given a befitting assessment of the poor taste and myopic mediocrity of the judiciary in this case. He has shown how a few politicians went to jail in defense of democracy while many judges chose to crawl when asked to bend. That was the politician’s finest hour. Today, we see the sad spectacle of a great political party which itself sponsored and supported the NJAC in both Houses of Parliament now extolling the judgment. This is nothing but a disguised political attack on its political rivals at whose hands it has suffered a shameful defeat.
One is sadly reminded of what was said in America when judges similarly exulted in judicial overreach. One commentator said that it was time that the Constitution of the United States of America was saved from the Supreme Court of the United States of America and the Supreme Court from its own judges. It is a matter of great sadness that in India, such thoughts should cross our minds.
The author is a former minister in the Karnataka government.
(The views expressed here are personal)