Unlike the US Constitution, the concept of separation of power is not clearly etched out in our Indian Constitution. This has led to major spats between the Executive and the Judiciary regarding supremacy of each other. Former PM Indira Gandhi fired the first salvo by introducing the 24th amendment (1971) where she proposed that every provision in Constitution can be amended or deleted through an amendment process.
The Supreme Court in 1973 put a caveat that a few basic principles of the constitution cannot be snuffed away. They include federalism, democracy, republican form of Government, secularism, separation of power and independence of the Judiciary. Stung by the caveat, Gandhi tried to amend the Constitution in 1976 by including two clauses in Article 368 which again reiterated Parliament’s supremacy in amending the Constitution and obliterating the judicial review powers of the Supreme Court.
However, in the iconic Minerva Mills judgement (1980), the Parliament has been denied its will to be omnipotent and the judicial majesty through judicial review of the Executive’s conduct and legislative legitimacy were firmly burnished.
The Indian Constitution envisages separation of Judiciary from the Executive in Article 50. Unlike other constitutional authorities like CAG and CEC, the President who is the executive head is expected to consult the Chief Justice of India in the matter of appointment of High Court and Supreme Court Judges. There was a great deal of debate in the Constituent Assembly about the selection process. Dr Ambedkar was keen to adopt the US model where a presidential nomination is subjected to examination of the senate committee on judicial appointments. However, he didn’t press for this process since he thought, “Democracy in India is only a top dressing on an essentially undemocratic India.”
The process of consultation with the Chief Justice of India has been going on since 1951 wherein the opinion of the CJI is considered to be most important. The years 1973 to 1977, sadly witnessed supersession of Judges once in 1973 and then in 1977 when the court didn’t pander to the social philosophy of socialism of the Congress party. This raised the bogey of Judges being committed to the powers that cast a shadow on selection of Judges and their transfers by the party in power.
The debate about judicial and executive supremacy reared its head in the SP Gupta Vs Union of India Case when the court clearly gave primacy to the Central Government and not the Supreme Court in the matter of appointment of Judges, as they are elected and accountable to the people. Justice Bhagawati observed that Judges should be of stern stuff and tough, unbending before power; economic or political. They must uphold the core principle of rule of law viz.“Be you over so high, the law is above you”. He also quoted Shakespeare who wrote “it is excellent to have giant strength but it is tyranny to use it as a giant.” The SP Gupta case is also significant because it didn’t give primacy to the CJI in the matter of selection of Judges.
In the Second advocates on record case (1993), the Supreme Court completely overruled the 1982 verdict and suggested that the Judges would be appointed on the basis of recommendation of collegiums which will have CJI and four other Judges. It also clarifies that the word ‘consultation’ in Art. 124 (2) should be construed to read as “concurrence”. The collegiums system has been in operation since 1993 and many legal luminaries and previous SC Judges have observed that the whole process is opaque in the absence of manifest guidelines. The principle of seniority which was in the heart of three Judges quitting in 1973 when they were superseded by Justice AN Roy is routinely violated by the collegiums, giving rise to a criticism of judicial nepotism. Accordingly, in 2015, the Government brought in an amendment to the Article 124 as per which it was suggested that a commission titled NJAC should be the basis for the judicial appointments by the President. It included the CJI as the Chairperson, two senior Judges, Law Minister and two eminent persons.
In the above judgement, a dissenting opinion was raised by Justice Chelameswar who had observed that transparency is a vital factor in constitutional governance. Drawing reference to the SP Gupta case, he had observed that the assumption of primacy of the Judiciary in the appointment of Judges is empirically flawed. To hold that the Government should be excluded from the process of appointing Judges is a doctrinal heresy. For Justice Chelameswar, the majority view point offends the principle of separation of power, which is a basic feature of the Constitution.
Going by the trend of arguments, one clearly discerns that most of the Judges including the retired CJIs support continuation of the collegiums system. To be fair to the judiciary, they have greater expertise in the matter of selection of Judges provided the selection process is objectively crafted and is known to all the stakeholders. The present CJI has observed that many bright young lawyers from the Supreme Court would be ideal candidates for becoming Judges of HCs. This is in the context of the evidence that judgeship generally goes to the members of the judiciary and not to the lawyers. Sadly, there is no discussion as to why the proposed creation of an Indian Judicial Service (1978) is not being put to effect.
This will bring in bright and talented lawyers into the scaffolding of Judiciary. It seems that the Supreme Court is averse to implement IJS as it would hinder the selection process of existing lawyers. When Pandit Nehru asked Setalvad regarding the criteria for selection of Judges, he had said, ‘more than independent mind we should look for competent judges.’
In the US the best of minds compete for judicial seats because it carries huge gravitas unencumbered by financial consideration. The very fact that the best and brightest amongst the legal fraternity don’t opt for judgeship is a reflection of the not so high on esteem bestowed on a judicial chair. With his impeccable intellectual pedigree, CJI Chandrachud must contemplate how to bring in the best and brightest to decide on legality and constitutionality of matters that will be adjudicated by the Judges.
The National Commission to Review the Constitution (2002) had suggested that a National Judicial Commission, with three Judges including CJIs, Law Minister and a person nominated by the President should substitute the present opaque collegiums system. It will give the Judiciary a majority voice as opposed to the NJAC structure, where the apple cart can be tilted by the party in power. The time for introducing IJS and replacing collegiums system with NJC has come to restore faith in the selection process and quality of Judges. As Fali Nariman writes, “Judiciary is like salt of the earth. If the salt ever loses its savour, then wherewith shall it be salted?”
(Dr Misra is Professor Emeritus)