By Adv. Mukul Anand, Alumnus, Gujarat National Law University.

Strong opinions are expressed by people, criticizing the Supreme Court’s judgement, striking down the 99th Constitutional Amendment, and consequently the National Judicial Appointments Commission (NJAC) Bill by a 4:1 majority. Social Media is flooded with such posts and articles, and heated arguments can be seen in the comments below the posts. Apparently, the aim of the Bill was to usher transparency in appointment of judges and potentially setting the stage for a confrontation with the executive.

The broad argument of the people against the judgment is that the Bill has the potential to do away with corruption, nepotism, and the like practices, prevalent in higher judiciary. Two days after the Supreme Court’s verdict, the Finance Minister, Arun Jaitley, said in his blog, “Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger.” It is pertinent to mention here that we, the people of India, have given ourselves a Constitution, and we have also declared it to be legally sovereign, and the Parliament is merely politically sovereign, and it cannot by an amendment rob the Constitution of its vitality and purposiveness (basic structure). Independence of the judiciary from the executive was intended by the Constituent Assembly too. Thus, weightage has to be given to the purposive interpretation of the provisions of the Constitution and intent of the Constituent Assembly.

The elected and the electors:

One of the issues in the historical Kesvananda Bharti case was, whether the amendment to the constitution is done by the people directly? The contention of the State was that since people are sovereign and the Parliament is elected by the people, it has unrestricted powers to amend the Constitution to any extent. The constitution bench of the Supreme Court, comprising of 13 Judges, rejected Government’s contention by a 7:6 majority. It was observed by the Court that indeed people are politically sovereign, but once they created the Constitution, the legal sovereignty got vested in the Constitution, and now, even the people of India have to act under the ambit of the Constitution. Moreover, Mr. Jaitley in his statement has emphasized the word elected, but it fails to appeal my reason because the will of the elected is not necessarily the will of the electors.

According to the Census of India’s website, any person aged 7 or above, who can read and write in any language, is a literate.  With such rigid definition, there were 272,950,015 illiterate persons in the year 2011. As for the educated class also, it cannot be denied that to interpret and to understand any legislation in its essence, a combination of specific skills, acumen, qualification and mental training is indispensable. With such state of things, the question arises is: Did the electors read and understood the Bill sufficiently to give their assent to it? Parliament is an elected body, and once elected, it becomes a legal entity under the Constitution, and when it amends the Constitution under Article 368, it cannot be said that the people are directly amending the Constitution.  Therefore, even though the Bill was passed by both the houses with an overwhelming majority, it would be improper to suggest that will of the legislatures is the will of the people, and that the Supreme Court acted tyrannically against the will of the nation.

The overwhelming majority:

Another curious fact which attracts attention is that the Bill was passed by 28 states. In a country like India, where there is ‘unity in diversity’, innumerable Bills are pending and have not been passed since years; and amongst the ones passed, perhaps none has been passed with such majority. The Bill was propounded by the Janta Party Government, and not the Congress Party Government (which was responsible for the emergency, and earlier constitutional amendments). It comes out, therefore, that all the political parties are united in their resolve, to overawe and subjugate the judiciary, and passed a self-serving Bill. It appears that the intention of the legislature and the executive, irrespective of the party in power, has been to invade into the “independence of the judiciary”. If the appointment of the judges was influenced by the Parliament since inception, in the manner provided by the Bill, we probably wouldn’t have witnessed judgments serving the interests of the electors, like Kesvananda Bharti.

With a minimal amount of research, one can discover that political scandals have been part and parcel of Indian political disclosure since Independence. The first scam took place in 1948, just one year after independence. A fierce Feroz Gandhi, the son-in-law of the then PM Jawahar Lal Nehru, set an example  by opening a front against his own father-in-law in Mundhra case of 1958 that led to the resignation of the then finance minister. But times have changed now. Political resignations on moral grounds have become a thing of the past. The politicians of this country have become so thick-skinned that they no longer care for public outrage over embezzlement of public money. The list of the political scandals in India is huge, may it be BJP, Congress or any other party. By any stretch of imagination, it is not perceivable that the political parties have the potential to do away with the problems of the judiciary, when the said problems are prevalent in itself more so.

Constituent Assembly Debates:

The final intent emerging from the Constituent Assembly debates, based inter alia on the concluding remarks expressed by Dr. B.R. Ambedkar, maintained that the judiciary must be independent of the executive. The aforesaid position came to be expressed while deliberating on the subject of “appointment” of Judges to the higher judiciary. Dr. B.R. Ambedkar while responding to the sentiments expressed by K.T. Shah, K.M. Munshi, Tajamul Husain, Alladi Krishnaswami Aayar and Ananthasayanam Ayyangar, noted the view of the Constituent Assembly, that the Members were generally in agreement that, “independence of the judiciary” from the executive “should be made as clear and definite as it could be made by law”. The above assertion made while debating on the issue of appointment of Judges to the Supreme Court, effectively resulted in the acknowledgement, that the issue of “appointment” of the Judges to the higher judiciary, had a direct nexus with “independence of the judiciary”. Dr. B.R. Ambedkar declined the proposal of adopting the manner of appointment of Judges, prevalent in the United Kingdom and in the United States of America, and thereby, rejected the subjugation of the process of selection and appointment of Judges to the higher judiciary, at the hands of the executive and the legislature respectively. While turning down the latter proposal, Dr. B.R. Ambedkar was suspicious and distrustful, that in such an eventuality, appointments to the higher judiciary, could be impacted by “political pressure” and “political considerations”.

In a paper authored by Nick Robinson, Fellow, Harvard Law School, titled “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts”, it’s written, “Given their virtual self-selection, judges on the Indian Supreme Court are viewed as less politicized than in the United States. The panel structure of the Court also prevents clear ideological blocks from being perceived (even if there are more “activist” or “conservative” judges). There is not the sense that all the judges have to assemble together for a decision to be legitimate or fair in the eyes of the public. Quite the opposite, judges are viewed as bringing different skills or backgrounds that should be selectively utilized.”

The Way Ahead:

There have been instances of corruption, nepotism, etc. in the judiciary, but NJAC does not seem to be a constitutional and effective solution. If the Bill is given effect, then the function of the judiciary to keep a check on the actions of the executive and legislature, will be gravely hampered. The proper remedy here might be to improvise the collegium system; prudence requires that the organ designed to keep a check on other organs of the State, should be totally independent of the organs being checked, in order to discharge its constitutional functions, and to promote fraternity in the nation.