Even before the birth of the Republic, Prime Minister Jawaharlal Nehru elaborated the government’s view on judicial review in the Constituent Assembly: “Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where, the future of the community is concerned, no judiciary can come in the way. And if it comes in the way ultimately the whole constitution is a creature of Parliament.” He went on to observe on the possibility of picking pro-government judges: “If courts proved obstructive, one method of overcoming hurdle is… the executive which is the appointing authority of judges begin to appoint judges of its own liking for getting decisions in its own favour.” Today the BJP is in full agreement with Nehru.
By striking down the 99th Constitutional Amendment and National Judicial Appointments Commission (NJAC) Act, the five-judge bench has saved the country from getting ‘parrot judges’. The greatest danger to the independence of judiciary does come from the executive. Though most of our judges have been independent and fearless “at times governments did succeed in appointing some judges of their choice”. It is an open secret that several pliant and submissive judges have made it to the highest court over the years.
Justice JS Khehar in his 440-page judgment expressed concerns about what he called the ‘culture of reciprocity’. Human beings do live in a “web of indebtedness” whereby favours generate feelings of obligation, and the desire to reciprocate. He observed: “Reciprocity and feelings of pay back to the political-executive, would be disastrous to the independence of the judiciary.” With the government as the biggest litigator and cases coming up against ministers and governmental policies, reciprocity would certainly impact decisions. Judicial appointments in United States are criticised for the ‘gratitude and loyalty’ which judges demonstrate to their benefactors for their support during the nomination process. In India, an act of not reciprocating towards a benefactor would more often than not be treated culturally as “an act of grave moral deprivation”. When the favour extended is as important as being appointed to the higher judiciary, Justice Khehar observed that “one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty”. Even Ambedkar was worried about political pressures on judges due to the executive’s participation in the appointment of judges.
Justice VD Tulzapurkar, an eminent retired Supreme Court judge, observed that “sycophantic chief justices” were a threat to judicial independence because they could easily pack the court or withdraw cases from one bench to another. The NJAC proposal of appointing the chief justice of India (CJI) and other judges on the so called “merit” was thus rightly held unconstitutional by the Supreme Court. This provision would have been used to get committed judges.
Pro-government judges are not a new phenomenon. Justice Willis in Lee v Bude in Britain observed: “We sit here as the servants of the Queen and Parliament.” But then supremacy of the Parliament and not the constitution is the first principle of British law. The BJP government’s reaction to the historic decision as an attack on the “sovereignty of the Parliament” is misplaced. We have supremacy of the Constitution and not Parliament in India. Every legislative decision does not reflect the ‘will of the people.’
In 1973, M Kumaramangalam, Indira Gandhi’s Cabinet colleague, defended the appointment of Chief Justice of India AN Ray, who superseded three senior-most judges, saying in Parliament: “We had to take into account what was a judge’s basic outlook on life….was it not right to take all these aspects into consideration? Was it not right to think in terms of more suitable relationship between the court and the government? …In appointing a person as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics.” Justice Madan B Lokur’s apprehension of the BJP government blocking the appointment of a gay person as a judge is thus justified as the party is opposed to various sexual orientations.
Indira Gandhi herself handpicked Justice MH Beg who was indeed a loyal judge. In the bank nationalisation case, where 10 judges went against the government, he was the lone dissenter. Similarly Justice Ray also supported the government with his dissent in the famous privy purses case. Former Chief Justice Mohammad Hidayatullah observed: “appointment of CJI AN Ray was an appointment not of creating forward looking judges but judges looking forward to the office of Chief Justice.” CJI’s appointment on merit under NJAC would have led to similar appointments. Did the BJP government even under the collegium system not block the appointment of Gopal Subramanium? No one doubts the competence of these judges. All of them were high profile and really great judges in their own right. But they were elevated not on the basis of their competence but under doctrine of reciprocity to support the government.
At the same time we must admit that even under the collegium system supersession did look like a rule rather than an exception. The collegium did cherry pick judges. Justice J Chelameswar’s dissent does talk of the opaque working of the collegium. Its decisions at times have been unpredictable. The collegium is a lesser evil in comparison to the NJAC. Let the court improve the collegium system to regain the people’s trust.
Faizan Mustafa is vice-chancellor, NALSAR University of Law
The views expressed are personal