The Supreme Court of India has delivered several landmark judgments and one of its most significant rulings was the decision in 1973 in the Kesavananda Bharati v State of Kerala case. The apex court ruled that the power of amending the Constitution — as conferred by Article 368 — was plenary in nature and Parliament can only amend the Constitution so long as it did not alter or amend its basic structure or essential features. Today, this doctrine is accepted jurisprudence in India.
In view of this judicial power, it is of vital importance to appoint independent judges who will discharge their functions without any executive interference or without a sense of gratitude to the executive for their appointment. In order to achieve that objective, the collegium system was judicially evolved, although the system of appointing judges to the higher judiciary is not in the Constitution. It was a judicial invention impelled by the anxiety to eliminate the executive’s exclusive role in the appointment of ‘sarkari’ judges, especially in view of the theory of committed judges propounded by the government of the day and the supersession of three senior-most judges of the Supreme Court whose judgments were unpalatable to the government of the day. Besides, the supersession of Justice HR Khanna for his courageous dissent in the ADM Jabalpur case was fresh in memory.
Despite its good intent, the inherent flaw of the collegium system is that it conferred on the judiciary the exclusive voice in the matter of judicial appointments. No modern democracy confers such a monopoly on the judiciary. Moreover, it is accepted that the collegium system has not worked satisfactorily. Justice JS Verma, who evolved the system, had also expressed his dissatisfaction about its working.
What is remarkable is that Justice Kurian Joseph, one of the concurring judges in the National Judicial Appointment Commission (NJAC) judgment, severely criticised the 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 and the NJAC Act, the SC has revived the flawed system. That is a paradox.
It cannot be disputed that the independence of the judiciary is an essential feature of the Constitution. It is a settled law that a constitutional amendment — even if it is passed unanimously in Parliament and ratified by large number of states — can be declared unconstitutional if it destroys independence of the judiciary. However, judicial invalidation of a constitutional amendment is permissible only in case of a palpable or shocking breach of an essential feature of the Constitution. For example, a constitutional amendment that purports to provide that only persons belonging to a particular community or religion may occupy the office of the President of India, the prime minister or the Chief Justice of India. This would be an infraction of the essential principles of secularism and equality and thus damage the basic structure 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”.
The main concern of the SC Bench was regarding the participation of two eminent persons in the appointment process even though they would not be appointed by the executive but by a panel comprising the chief justice, the prime minister and the leader of the Opposition. There is no warrant to assume, much less to suspect, that the panel would not appoint distinguished persons who believe in the importance of an independent judiciary. I feel sufficient attention was not paid to observations of the SC in its judgment in the Abolition of Privy Purse case in 1994, 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”.
Assuming the SC had misgivings regarding the provision about the participation of eminent persons, it, in keeping with the well recognised doctrine of reading into, could have legitimately ruled that having regard to the nature of the function to be performed by the eminent persons, eminence must be in law and jurisprudence and eminence in the field of music or science or politics may not qualify him or her as an eminent person.
Apparently, the presence of the law minister in the appointment process was not liked by the judges. The law minister cannot be treated as a pariah or an untouchable. No doubt judges are the most appropriate persons to be involved in the matter of appointments to the higher judiciary, but the judiciary cannot be an exclusive body in the matter. The correct approach is that of the dissenting judge, Justice Jasti Chelameswar, who rightly observed that appointment of judges should not remain the exclusive domain of the judiciary and “the government and civil society members must have a say in it”.
The NJAC Act, properly construed, does not diminish the role of the judiciary or make its voice muted and ineffective. Its invalidation on the basis of surmises and suspicion has revived the flawed collegium system, which is indeed a conundrum and certainly not a step in the right direction.
Soli J Sorabjee is a former attorney general of India
The views expressed are personal