Judicial Reform in India - Will the Lordships Budge on NJAC?
- In Current Affairs
- 12:47 PM, Sep 12, 2016
- Chandranshu Singh
If the thoughts and ideals that enshrine a nation's philosophy, its aims, and the aspirations of its people are not challenged from within, if outlets to legitimate airing of grievances are not available to the people, then the nation and its state becomes susceptible to systemic rot from within, as well as to challenges that emanate from external sources. The thoughts and ideals enshrined in our Constitution are no different, the founders of the Indian Republic had exactly this in mind when they resolved to provide the Constituent power to Parliament, enabling it to amend the Constitution as needed.
The objective of this article is to examine the limits if any that should be imposed on the Constituent power of Parliament, in the light of the Basic Structure Doctrine as evolved by the Honorable Supreme Court of India. The debate at the heart of the matter is essentially one of internal sovereignty amongst the arms of the state namely Legislature, Executive, and Judiciary manifested through the two principles of Parliamentary Supremacy and Judicial Review. The founders of the Indian Republic opted for a fine balance between the two systems, creating a robust system of Judicial Review in the face of Parliamentary Supremacy. It is argued here that this balance between judicial review and parliamentary supremacy has constantly been attacked by the Supreme Court to secure for itself a primus inter pares role amongst the three arms of the state.
This discussion assumes greater importance given recent events, namely the striking down of 99th Amendment Act and the NJAC Act citing the Basic Structure Doctrine (BSD). Moreover, Supreme Court is going to hear a plea on 12th September 2016 regarding the setting up of an independent body for appointment of Judges. It is perhaps in the light of recent comments made by Justice Chelameshwar (a member of the current Collegium) and retired CJI Lodha with regards to the opacity of the Collegium system of judicial appointments.
Parliamentary Supremacy in the UK
In the UK, the fight for liberty and democracy was against an incumbent monarchy, the founders of the Constitutional Monarchy in the UK didn't have to contend with foreign domination. Therefore, the principle of sovereignty of the people was best represented as the sovereignty of people's representatives i.e. Parliament.
Judicial Review in America
The American system, on the other hand, differs markedly from the UK. The USA has a written constitution, as well as the system of Bill of Rights and Judicial Review. Judicial review in the American sense is best understood in the words of former Chief Justice of US, Charles Hughes, "the Constitution (of the USA) is what the Supreme Court says it is."
The US Supreme Court can not only invalidate laws in case the legislature transgresses its authority, or for protection of rights given in the Bill of Rights, but also for vague and unsubstantiated reasons contained in vague expressions such as ‘due process'. Such expressions are not included in the American Constitution; they are simply legal constructs employed by the Court to impose its authority over the other two arms of the state by defining and interpreting. Dr. D.D. Basu in his "Introduction to the Indian Constitution" writes that "The American Judiciary thus sits over the wisdom of any legislative policy as if it were a third Chamber or super-Chamber of the Legislature."
One needs to look into America's colonial past to understand the need for Judicial Review. As colonies, American states were at the mercy of the UK Parliament, which often opposed their demands. Therefore, the Americans decided to have oversight and supervision over the Legislature also, to protect American citizens from the tyranny of the legislatures. It makes certain that internal sovereignty resides with the US Supreme Court. However, even then the US Supreme Court doesn't appoint itself as is the case in India. Judges are nominated by the Executive (President), confirmed by the upper house of Legislature (Senate), and then elevated to the Supreme Court for life.
The Indian internal sovereignty logjam
In the case of India, Dr. Basu writes that "Indeed the harmonization which our Constitution has effected between Parliamentary Sovereignty and a written Constitution with Judicial Review is a unique achievement of the framers of our Constitution." Indeed this is true, or it was true, till the Supreme Court of India decided that they favored the American system more. It was repeatedly reflected in the decision after decision, circumscribing and limiting Parliament's power to amend the Constitution, adopting a rigid view of the independence of Judiciary, and interfering in the executive and legislative domains. This approach taken by the Indian Judiciary has often been called judicial activism and judicial overreach.
The founding fathers of Indian Republic also shared the concerns of their American counterparts, having experienced the tyranny of non-representative assemblies, as well as being subject to the UK Parliament. They adopted a system of judicial review, to set up a robust Supreme Court of India, and guarantee the fundamental rights of both individuals and communities.
However, a robust Supreme Court envisaged in the Constitution has turned into an omnipotent Supreme Court, by appropriating the power of judicial appointments from Executive and limiting the Constituent power of the Legislature. In India, the power of appointing judges is to be exercised directly by the Executive, and indirectly by the Legislature. However, we currently have a system of judges appointing judges. The learned justices of the Supreme Court are an unelected body and have say over what laws the Parliament can enact. This safeguard is an essential feature of our Constitution, no denying that. However, by also appropriating the power of judicial appointments granted by the Constitution to the Executive, the Supreme Court has carved for itself a position that goes much beyond primus inter pares. It is now a state unto itself. It can be argued that we are living in a judicial oligarchy.
The Indian system of balance between Judicial Review and Parliamentary Supremacy was eroded over the course of time. In Maneka Gandhi (1978) the Supreme Court introduced the concept of ‘due process' thereby striking at the aforesaid balance. It enabled the Court to question the wisdom of the legislative policy, a power that was not granted to it by the Constitution.
Nehru held the view that "no Supreme Court, no judiciary, can stand in judgment over the sovereign will of Parliament, representing the will of the entire community. It can pull up that sovereign will if it goes wrong, but in the ultimate analysis, where the future of the community is concerned, no Judiciary can come in the way. Ultimately, the fact remains that the Legislature must be supreme, and must not be interfered with by the Courts of Law, in such measures as social reform."
Constitution envisaged position is that Constituent Power of Parliament is plenary in nature. It means that the Parliament can change any and all parts of the Constitution, without any limits, and laws enacted using either the Constituent power or the legislature shall be subject to judicial review.
Indian Judiciary seems far too preoccupied with its independence than anything else. The Constitution makes several provisions to ensure that independence, such as the process of removal of a judge is terrible. So far only one Judge of a High Court has come close to impeachment, and he too resigned before he could be impeached. The judges' salary and other emoluments can't be downgraded during their term in office, and so on. Nowhere does the Constitution say that the judges shall appoint themselves, and that is the bone of contention, not judicial review. Judicial review, as the Court rightly observed in Kesavananda Bharti (1973) is indeed a core and one of the most cherished features of our Constitution.
To some extent the reactionary nature of Indira Gandhi also shocked the Supreme Court into thinking that a single party government with a vast majority can flip the Constitution on its head, thereby creating the need for a basic structure or core of the Constitution that must always be protected. The problem has been exacerbated by three decades of weak coalition governments at the Centre post-Emergency and ineffectual, incompetent legislators who could never rise above petty party politics.
The judiciary has occupied the space vacated by the executive and the legislature. Both the executive and legislature are equally at fault for dereliction of duty, and upsetting the fine balance of power envisaged by our Constitution.
The Doctrine of Basic Structure amounts to transgression into Legislative Domain by the Judiciary
In sum, it is time for BSD to go. Simultaneously, it must be clarified that Supreme Court has rarely and judiciously invoked BSD. Having said that, no theoretical limit can be applied apriori on the Constituent power of Parliament. Judicial review is and has to be a post facto exercise. At the same time, the enormous power granted to the Supreme Court by the Constitution must be used judiciously, and should not be employed as a tool to create a judicial oligarchy, especially not to perpetuate a system of judges appointing judges.
The power to appoint judges has been given to the President. Supreme Court should respect and honor that condition. The Constitution says that the CJI shall always be consulted for any appointments to the Supreme Court, what it doesn't say is that the CJI's decision shall be binding on the President. It is the Supreme Court which has said that, and thereby appropriated the power of judicial appointments unto itself (SP Gupta 1981, Advocates on Record 1993).
While invoking the BSD to strike down the 99th Amendment, the Honorable Court chose to ignore the fact that independence is to come into effect post appointment. The independence of other Constitutional functionaries such as the CAG, the CEC, is all post assuming office. There is no such freedom in the process for self-appointment under the Constitutional scheme, which is exclusively the domain of the Executive. By appropriating the power to appoint judges unto themselves, their Lordships have done a great disservice to the democratic fabric of this country; it also goes against the principles of justice and fairness.
Comments