These political actors and policy-makers have welcomed the judicial expressions of constitutional disappointment at the lack of progress towards a Uniform Civil Code and SCI-goaded action towards fulfilment of Article 44 of the Constitution. And they have silently applauded the Sanjiv Rajendra Bhatt case, where the SCI refused to constitute an SIT in a situation which it found conflated party politics with citizen and judicial activism; in remanding Bhatt to stand criminal trials, it continued to issue ‘clean chits’ to the Prime Minister and the President of BJP for Gujarat 2002 events.

These decisions read together establish again a basic truth: judicial review is a constitutional affair where decisions (notwithstanding some perverse justicing) are not given for political but juridical reason. Courts and justices are not in the business of gaining and managing competition for power to rule others (politics); rather, they exist because they seek to bring the conduct of powerful actors in state and civil society to the discipline and constraint of legal and constitutional norms (establishing the political, the basic values of a constitutionally desired order).

While this is not the space for elaborating the distinction between constitutional and party politics, this much must be noted: If the tendency of all political actors is to covert the structural into merely episodic, constitutional justicing involves conversion of the episodic into structural. Judicial reason is concerned with periodic enunciations of the basic structure; power politics, when all is said and done, is all about winning the next election. Each has an independent public sphere and should be adjudged according to its own norms and standards. Very often, Justices and political actors are on the same page as regards the security and integrity of the nation and contemporary development as neoliberalization; but to demand that Justices follow the political actors all the way makes no constitutional sense.

Some judicial decisions may be palatable to the regime or the political class; others may not be. However, the Justices decide according to the discipline and traditions of constitutional interpretation; they may sometimes be wrong (and often the justices say so in overruling the past decisions) but what the SCI rules becomes binding law under Article 141. In the NJAC decision they saw no reason to reconsider the abundant past precedents and arrive at a fresh decision, thus concluding that independence of judiciary is the essential feature of the basic structure. What the political critics of the decision forget, or choose to lay aside, is the fact that the Government has always accepted the primacy of the CJI, which was approved as the principle of judicial collegium and stands is now further endorsed. They now say that the inclusion of the executive does vitiate judicial ‘exclusivity’ but not judicial ‘primacy’ and they prefer to read the decision as enacting the former—and this remains a bone of contention between the ruling executive and the SCI.

However, all distinguished Justices agreed with Justice Chelameswar who, in his lone learned dissent, maintained that there was no “difference of opinion between the parties…regarding the proposition that [the] existence of an independent judiciary is an essential requisite of a democratic Republic”, nor any difference regarding the “proposition that an independent judiciary is one of the basic features of the Constitution of India”. However, the difference concerned whether in enacting NJAC Parliament violated any essential feature or basic structure; Justice Chelamaswar was not able persuade his Brethren that the NJAC was constitutionally valid. 

The majority opinion penned by Justice Khehar ruled that ‘consultation’ in Articles 214,217, and 222 always meant an independent judiciary and primacy of the CJI in the process, now exercised through a judicial collegium. And Justice Madan Lokur, in the long concurring opinion of about 300 pages, even went to elaborate it as pre-constitutional virtue. If this is so, no Parliament may amend the constitution so as to take away, abrogate, or destroy this aspect of the basic structure. The Constitution may never be amended, as the majority ruled, to say that the “manner of selection and appointment” of Judges to the higher judiciary” is not an ‘’integral component” of “independence of the judiciary”.

The inclusion in the NJAC as a member of the Law Minister, and of the Justice Secretary as its convener, was declared as not ‘sustainable in law’ because this would bring the Union executive into full play whereas their role was constitutionally confined to providing to the Collegium any adverse security or criminal intelligence reports. The SCI also invalidated the membership by ill-defined ‘eminent persons’; though the Court was generally in favour of the principle of public participation in civic and political affairs. Justice Kurian Joseph described “eminent persons” who denied any role in judicial appointment were now to ‘suddenly’ assume “Kafkaesque proportions” and acting in concert were capable to “paralyze the appointment process, reducing the President and the Chief Justice of India to ciphers for reasons that might have nothing to do with the judicial potential or fitness and suitability of a person considered for appointment as a justice”.

Moreover, this inclusion offended the basic structure also because the State itself was the largest litigant and public confidence in courts and justices will erode, particularly in their impartiality, were the executive to have any direct role in judicial elevation and transfers. The NJAC “does not exist under law’, pithily, observed the learned Justice and asked “Why then write the horoscope of a stillborn child!” Justice Goel also held the NJAC invalid because there “may be criticism even against discharging of judicial functions by the aggrieved parties or otherwise” but that does “not justify interference with the judicial decisions”; such “criticism can be against the working of any system but the systems can be changed only as per the Constitution: and efforts “to improve all systems have to be continuously made”.

The first part of a guest post by Professor Upendra Baxi, Emeritus Professor of Law, Universities of Warwick and Delhi; former Vice Chancellor, University of South Gujarat and Delhi. This post is adapted and enlarged from Professor Baxi’s op-ed which appeared in the Indian Express a few days ago. Professor Baxi can be reached via comments on this website or through email at [email protected].