The Supreme Court judgment striking down the National Judicial Appointments Commission has, quite understandably, drawn a mixed response — and not all determined by political preferences. Reading the potted summaries of the judgments in the newspapers, I was, however, struck by one sentence of Justice JS Khehar’s judgment (as reported in The Hindu). “It is difficult”, the judge held, “to hold that the wisdom of appointment of judges can be shared with the political executive. In India, the organic development of civil society has not as yet sufficiently evolved.”
legal luminaries may draw their own meaning of what this sentence implies. However, it reminded me of an assertion by 19th century German historian Heinrich Trietschke. Writing on the vexed Alsace-lorraine question that complicated Franco-German relations, he stated without mincing words, “We Germans, who know both Germany and France, know better what is for the good of the Alsatians than do those unhappy people themselves… We desire, even against their will, to restore them to themselves.”
I don’t know whether or not I am being unfair to Justice Khehar. However, the belief that the democratic process based on universal adult franchise is by definition imperfect and debased — particularly in a country where educational and income levels are vastly uneven — has a long and impressive pedigree. Immediately after Independence, when the Constitution was in the making, various notables expressed serious doubts over the wisdom of introducing universal adult franchise — doubts not terribly dissimilar to the scepticism in many ‘advanced’ democracies over giving women the vote. In the 1960s, there was a belief among some policy-makers in the US, that Field Marshal Ayub Khan’s ‘basic democracy’ — essentially a variant of the limited franchise that prevailed under the Government of India Act of 1935 — was a better alternative to both Communist-style totalitarianism and the rule of the mob.
In the view of the Congress, the “NJAC judgment implicitly reflects lack of confidence in the Government which has eroded institutional autonomy and constitutional safeguards over the last 17 months” — a point repeated, albeit quite incoherently, by activist lawyer Indira Jaisingh on TV last Friday evening. This assertion may well be true but it is striking that the Emergency and the Indira Gandhi Government’s supersession of judges was held up by the apex court to indicate why the principle of checks and balances would be compromised by allowing the executive a say in judicial appointments.
Whether the misgivings of the four Judges stemmed from concerns over the state of civil society evolution — the people-don’t-their-own-minds argument — or a more narrow-focus doubt over the intentions of the Narendra Modi Government is, to my mind, a case of hair-splitting. The main point is that the judges believe that power-sharing in the administration of justice is undesirable because neither the electorate nor its chosen representative have reached the desired cultural levels to do justice to justice. Justice Madan lokur is quoted in the media as even saying — maybe as an aside — that the proposed collegium wouldn’t appoint anyone with sexual preferences that violate the Indian Penal Code.
The net conclusion is inescapable: India can do with a prolonged bout of Constitutional handholding. Or to paraphrase Trietschke: ‘We desire, even against their stated will, to defend India from Indians.’ The judgment is troubling in its wider implications.
Of course, the judgment has recognised the shortcomings of a self-perpetuating judiciary and the need for a greater measure of accountability. It is entirely possible that the proposed consultations will come up with something meaningful and, in effect, result in an outcome that is tantamount to writing down the deemed “unconstitutional” NJAC law passed by overwhelming majorities and cross-party support by both Parliament and 20 State Assemblies. We can only hope for a satisfactory solution that acknowledges the need for change but accommodates the principle of judicial self-regulation against the challenge of parliamentary sovereignty. It is also to be hoped that the Supreme Court takes a re-look at the prevailing practice of retiring judges being accommodated on commissions, tribunals and other quangos. Perhaps the quest for post-retirement possibilities also has the potential of compromising the independence of the judiciary.
However, the biggest question that must be addressed sooner or later centres on a philosophy. Should the courts focus on the enlightened interpretation of lawsIJ Alternatively, should it position itself as a parallel law-making body, speaking on behalf of the minority that has evolved more than civil societyIJ
These are not uniquely Indian questions. In fact, they were asked in earlier decades too. That, however, is no reason why such pressing philosophical questions shouldn’t be asked again.