February 22, 2020
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Equality In Perfect Harmony

The independence of the judiciary as a safe-keeper of the Constitution is paramount. But appointment of judges had better be more consultative.

Equality In Perfect Harmony
Equality In Perfect Harmony
Appointment Of Judges To The Supreme Court Of India: Transparency, Accountability And Independence

Edited By Arghya Sengupta and Ritwika Sharma
OUP | Pages: 324 | Rs. 750

An unmistakable attribute of any nation which professes to be secular, democratic and upho­lder of the rule of law is the imp­ortance it attaches to the institution of an independent jud­­i­­ciary. It is not generally apprecia­ted that judges do not merely resolve disputes between parties. Judgment of judges, especially in the apex court, aff­ect the lives and conduct of its citizens.

The Supreme Court of India has delivered a few landmark judgments. Its most significant judgment and one which has an impact on the life of the nation is its decision in April 1973 in the Keshavanand Bharati case, where it propounded a unique doctrine, namely that though the power of amending the Constitution conferred by Article 368 of the Const­itution is plenary, yet it could not be exe­rcised to destroy an essential feature of it and thus damage its basic structure. This doctrine of basic structure is the accepted jurisprudence in India.

The inherent flaw of the collegium system was that it conferred on the judiciary the exclusive voice over appointing judges—a monopoly that isn’t there in any modern democracy.

In view of this vast judicial power it is of vital importance to appoint independent judges who would discharge their functions without any executive int­erference, or without any sense of gratitude to the executive for their appointment. In order to achieve that obj­ective the collegium system was judi­­ci­­ally evolved, although the collegium system of appointing judges to the higher judiciary is not in our Constitution. It was indeed a judicial inv­ention impelled by the anxiety to eliminate executives’ dominant role in the appointment of ‘sarkari’ judges, esp­ecially in view of the theory of committed judges at one time propounded by the government and the supersession of three senior-most judges of the SC, whose judgments were unpalatable to the government of the day. Besides, the supercession of Justice H.R. Khanna for his courageous dissent in ADM Jabalpur case was fresh in memory.

Despite its good intent, the inherent flaw of the collegium system was that it conferred on the judiciary the exclusive voice in the matter of appointment of judges. No modern democracy confers such a monopoly of power on the judiciary. Moreover, it was generally accepted that over the years it had not worked satisfactorily. Remarkably, Justice Jos­eph Kurian, one of the concurring judges in the National Judicial Appoint­ment Com­mission [NJAC] judgment, severely criticised the collegium system by observing that “deserving persons have been igno­red wholly for subjective reasons...sel­ection of patronised or favoured persons were made in blatant violations of the guidelines resulting in unmerited, if not, bad appointments”. Yet, by invalidating the 99th Consti­tu­tional Amendment Act, the Supreme Court in effect revived the flawed system. That is a paradox.

The independence of the judiciary is an essential feature of the Constitution. It is also settled law that a constitutional amendment, even though passed unanimously in Parliament and ratified by many states, can be declared unconstitutional if it destroys the judiciary’s inde­pendence. However, judicial inv­­ali­­da­­tion of a constitutional amendment is permissible only in case of palpable or shocking breach of an essential feature of the Constitution. In this context, the observations of Justice Krishna Iyer in the case of Bhim Singh v. Union of India, dealing with the alleged infraction of the guarantee of equality in our Constitution, are significant, viz. “what is betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice.... But to permit the Bharati ghost to haunt the corridors of  the court, brandishing fatal writs for every feature of inequality, is judicial para­lysation of parliamentary function”.

In adjudicating the constitutionality of constitutional amendments, sufficient heed should be paid to observations of the SC in its judgment in the Abolition of Privy Purse case, namely that “in judging constitutional validity of a constitutional amendment the Court may not make surmises on ifs and buts in reaching the conclusion of unco­nstitutionality”. No doubt, judges are the most appropriate persons to be invo­lved in the matter of appointments of lawyers to the higher judiciary, but the judiciary cannot have a monopoly in it. The correct approach is that of Justice Chalameswar, who rightly obse­rved that “the government and civil soc­iety members must have a say in it”.

The range of issues covered by the book need to be constant reminders for every citizen who is concerned with the independence of the judiciary. The contributors to this book are persons of eminence from various fields of law and legal discipline and their comments are truly remarkable and thought-provoking. The authors have done a commendable job and they deserve full credit.

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