Has the Supreme Court defied the supremacy of parliament, as is being made out by sections within the ruling combine, by its judgement striking down the National Judicial Appointments Commission?
There are limitations to the argument of parliament’s supremacy over the other two pillars of the State — the judiciary and the executive. That is, if one takes into account the Constitutional scheme of separation of powers of these institutions.
The Parliament is ‘supreme’ as it’s the only elected pillar of the state. As people are sovereign in a democracy, their mandate affords the elected representatives the privilege of making laws — subject to review by the apex court for their constitutionality. The arrangement ensures a fine balance of power between the three organs.
In that light, the judgement has to be viewed from the perspective of the supremacy of the Constitution. It might, on the face of it, seem an example of se iudice causea propriae — Latin for someone judging his own cause. But the NJAC was opposed before it by some of the country’s foremost lawyers. The court didn’t take it up suo motu.
The argument was no different against the since restored collegium system for judges’ appointment. But in the instant case, a point made in the judgement and overlooked in the debate it has triggered, is that the NJAC, though created through an amendment of the constitution, lacked constitutional safeguard.
The Commission was vulnerable therefore to the danger of the current or a future parliament diluting its composition and functioning through the passage of a simple law to give the executive the last word in the appointment of judges.
Noted lawyer Harish Salve disagreed on other reasons the Constitution bench cited to show the NJAC in contravention of an inviolable basic feature of the Constitution — the judiciary’s independence. He shared nevertheless the apprehensions that the overturned NJAC lacked constitutional safeguards against subsequent parliamentary adventurism to alter its working and composition.
“Please create the NJAC as a body and put it in the Constitution,” Salve told Karan Thapar on India Today TV. “That will help us know how the NJAC will be and how it will work,” he suggested while discussing ways to make the proposed mechanism acceptable to the apex court.
But the optics have changed since the 99th Constitution amendment was passed, paving the way for the NJAC. The reality is that the 2014 parliamentary consensus for ‘transparency’ in judges’ appointment was driven as much by legislative angst against the judiciary’s intrusions on the executive’s domain in recent years — largely on account of the governance deficit arising out of a fragmented, adversarial polity.
That consensus has lately shown signs of dissipation. The reason: The NDA’s actions in loading institutions of excellence, research and higher learning with loyalists with below par abilities.
If it’s resolute and serious, the government will have to try hard to forge the legislative unanimity that had seen the NJAC-I through. For the present, it looks easier said than done. The national polity being in a hugely partisan mode, the Congress is unlikely to play ball this time.
The SC verdict saw well known lawyer and Congress spokesman Abhishek Singhvi quickly going on record to accuse the NDA of attempts to impose its will, including through the judiciary.