You Broke It, You Fix It

In the past fortnight, there have been two important developments that have had a direct bearing on the relationship between the judiciary on the one hand and the legislature and executive on the other. The first was the refusal by Justice J Chelameswar to attend a meeting of the Supreme Court collegium, citing the lack of transparency in the process relating to the appointment of judges (Express, Sept 2). The second was a statement by the Prime Minister in a TV interview underlining the need to maintain decorum in dealings with the judiciary.

The relationship between the judiciary and Parliament has been strained since the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act in October 2015. It is fairly well-known that long before the advent of the Indian Constitution, there used to be a perfect mechanism for appointment of judges to the High Court and Federal Courts till 1947. The framers of the Constitution incorporated that procedure for appointments to the Union Judiciary and the High Courts. However, taking note of certain acts of non-cooperation or overreach by the Union Executive, the Constitution bench of the Supreme Court in The Advocates on Record Association Vs Union of India (AIR 1994 SC 2041) virtually rewrote the provisions of the Constitution, conferring primacy on the judiciary, almost to the exclusion of the executive, in the matter of appointment of judges. This tilt in the balance of power gave rise to serious structural problems and even that champion of reform, Chief Justice J S Varma himself, openly stated that the system that had evolved through the judgment in the Second Judges Case did not work well and needed reconsideration.

Other jurists and social scientists have expressed similar concerns, and the acts and omissions of some of the judges appointed through the collegium system convinced Parliament to come up with an enactment to inject an element of transparency and objectivity into the process of appointment of judges. In a rare event, political parties irrespective of their ideological leanings voted in favour of the NJAC Bill.

The basis on which the Supreme Court struck down the enactment is a matter of recent history. Several commentaries and analyses have been made on this matter. Suffice it to say that jurists are yet to come to terms as to how far the Supreme Court has respected the time-tested principles of statutory interpretation, the concept of judicial review and balance of powers enshrined in the Constitution.

In his dissenting opinion, Justice Chelameswar demonstrated how flawed the collegium system has turned out to be. From among the judges who gave that majority judgment striking down the NJAC Act, Justice Kurian Joseph too acknowledged the existence of flaws, and even while striking down the Act, gave a firm suggestion for making amends to the system.

For the most part of it, it is by invoking the doctrine of ultra vires that an enactment is struck down by constitutional courts whenever challenged. By its very nature, the doctrine mandates that the court must demonstrate as to how the Act in its entirety or in part militates against any provision contained in a superior enactment or the Constitution of the country. Viewed from this angle, one does not find that the Supreme Court found the NJAC Act to be contrary to any specific provision of law. Even in the Keshavananda Bharati case, their Lordships were not able to pick up any specific ratio which has the effect of totally denuding the power of Parliament to enact laws under entry numbers 77 and 78 of List 1 of the Seventh Schedule.

The views of jurists apart, it can be stated that the striking down of the NJAC Act has virtually brought the entire matter pertaining to the appointment of judges to the level of uncertainty. Questions are being asked as to how and why the Supreme Court has asked the Executive to frame a Memorandum of Procedure (MoP) on appointment of judges when it had categorically pronounced that not only the executive but also Parliament have no power to take steps or legislate in this regard. Opinions are also being expressed to the effect that independence in discharge of duties by judges has been extended to one of independence in appointing themselves.

Be that as it may, the Supreme Court was expected to bring about a respectable, lawful and perfect solution to the issues that have emerged in the light of the NJAC judgment. Once the Supreme Court has expressed its lack of confidence in the executive and Parliament and treated them as untouchables, there is no point in blaming them for the present situation. Disturbingly, several subsequent developments, such as the weeping of the Chief Justice of India during the conference of chief justices and chief ministers expressing his helplessness in the matter; the observations in a PIL almost threatening the government with judicial orders; or finding fault with the speech of the Prime Minister on Independence Day, have not at all added to the dignity and honour of the judiciary. As observed by jurist Justice H R  Khanna, the judiciary cannot take for granted its dignity or respect. While in quite a large number of cases, it emerged as the protector of the rights of citizens and the guardian of the law of the land, instances are not lacking, such as in ADM Jabalpur vs Union of India, when it utterly failed to protect even the right to life of a citizen, which one gets by birth and not under any Constitution.

Subsequent apologies or eloquent sermons, which the occasion did not warrant, can hardly wipe away that blot. For those who are acquainted with the situation, it is not difficult to imagine what anguish may have forced Justice Chelameswar to refrain from attending the collegium meeting. His effort was only to ensure that objectivity and transparency exist in the matter of appointment of judges. Unfortunately, there does not appear to be any serious effort to address such important issues. Each time efforts are being made only to find fault with the government.

Irrespective of political ideologies, the governments of the day hold the higher judiciary in high esteem, even when they suffer judgments to their detriment. We find that irrespective of the setback in the form of the judgment on the NJAC Act, or the unfortunate and provocative statements that have emerged from time to time, the government has chosen not to react to them, except to reply in a dignified manner.

The observations of the Chief Justice of India on the Independence Day speech of the Prime Minister were indeed unfortunate and uncalled for. In fact, it would have been an impropriety on the part of the Prime Minister had he said anything about the judiciary or the highest court of the land in a public speech. To find fault with the Prime Minister for not making a mention of the judiciary or the ongoing unfortunate situation created by the Supreme Court itself can by no means be said to be in good taste or in the fitness of things.

There is a hidden message in the observation of the Prime Minister in his TV interview, that each constitutional organ of the State is under obligation to respect the other; and to maintain decorum even when dissent is to be conveyed. The unfortunate part of it is that what prompted the hidden lesson about the decorum was unquestionably certain statements that emanated from the head of the judiciary.

Let us hope that a respectable and proper solution is found to the unfortunate imbroglio; and since the Parliament and the executive were told point-blank that they have no role worth its name to play in this regard, the burden of finding a solution squarely rests with the Supreme Court.

By Justice L Narasimha Reddy, former Chief Justic of the Patna High Court

Courtesy: The New Indian Express