The SCI did not hold that Parliament may not ever contemplate bringing about a change in the method of appointing justices; it only (and rightly) insisted that the NJAC changes did not comply with the basic structure of the Constitution as it carried the threat of a non-judicial veto over appointment and transfer of constitutional justices. The power of Parliament to amend the Constitution is recognized as plenary and its exercise is usually respected by SCI: the SCI very infrequently strikes down a legislation invalid but it only does so when it offends the Constitution egregiously by violating fundamental rights or federal principle and this is done only when it cannot be saved or read down by any rule or practice of harmonious construction. And in the history of Indian constitution at work, the SCI has rarely invalidated a constitutional amendment; that they may sometimes do so should chasten and discipline executive and legislative powers in their reading of the Constitution and judicial decisions. No “fanciful” reading (as Justice Khehar puts it) will pass constitutional muster.
But there was also an element of constitutional surprise whose happening is not determined by contingencies of party or parliamentary politics but by the felt necessities of constitutional justicing. The constitutional surprise may not appeal to political or even the public opinion in the short run, yet it becomes abiding law: the doctrine of basic structure furnishes one example, independence of the judiciary accentuating the primacy of the CJI is another. Surprise, indeed, becomes astonishment when we realize that Justices seek to normatively constrain the political supermajorities, especially when these threaten the constitutional schema.
Although not directly agreeing with salient criticism of the judicial collegium system articulated by Justice Chelameswar, Justice Kurian Joseph also joined it (in learned but the shortest concurring opinion); as the latter said the question was no longer “about the existence of the pre-existing system of appointment’ but surely the “surviving issue of grievances as to working of pre-existing system” should be examined. At the early November hearings, the matter of improvements in the existing/revived judicial collegium system will be urged by eminent petitioners, and other senior lawyers, now busy preparing their suggestions which one hopes will make the system transparent and accountable; certainly, timely disclosures of names considered and those eventually appointed will greatly increase both. The surprise is greatly enhanced by the fact that this post-decisional hearing will now result in a decision binding on the CJI and the Collegium itself.
I had suggested that instead of going before the SCI in adversary mode, the Government should have requested an Advisory Opinion (an alternative specifically suggested by me at the ‘consultation’ with jurists convened by then Law Minister, Shri Ravi Shankar Prashad and reiterated Indian Express, August 8, 2014).But the Government decided to perform some aggressive advocacy and it lost. But the cause still exists: and it may be pursued by it seizing the opportunity to urge ways in which the collegium system may be progressively reformed and avoid a possibility of conflict among the high constitutional karmacharis.
Short of the wholly undesirable total reversal of all binding precedents or the abolition altogether of constitutional courts having the powers of judicial review, all excessive claims of ‘parliamentary sovereignty’ have to be moderated by the fact that no organ of governance is ‘sovereign’ under the Indian Constitution. All—the legislature, executive, and judiciary– have to remain content with supremacy within the constitutionally anointed sphere. Each is known to correct its errors in understating the provisions and the spirit of constitution and laws enacted under it.
The SCI has its own dark moments: the infamous Shiv Kant Shukla decision during the 1975-76 Emergency, (disavowing any judicial role responsibility for issuing habeas corpus, even on grounds of mistaken identity) was differentially reiterated ,in the late eighties, during the Bhopal settlement orders (immunizing a multinational for self-evident acts and omissions that caused the release of 47tonnes of methyl isocyanate gas); these show that despite all the caution justices may, and do, tragically err. Such dark moments may be few and far between yet impose enduring huge and poignant individual and intergenerational costs to the violated suffering humanity and the nation. But the dark moments also becloud political, bureaucratic, and even civil society conduct and action. Have we any comparative analysis, or even charts? How is individual pain and social suffering in a planned social catastrophe ever to be measured and classified? Has the SCI has on the whole found ways to correct its own mistakes compared with the executive and legislatures?
Responsible social criticism aimed at judging the judges ought to at least take account of what justices say and do, and how they procced to identify and redress errors in interpretation. Such criticism ought also to address how the other organs of governance have done similar errors and have seen it fit to overrule the past. And when constitutional errors give rise to grave and continuing provocation to the people of India, what may they do save offer collective resistance by way of peaceful civic disobedience? Does insurgent citizen constitutional action always represent a breakdown of constitutional structure or does it hold out also the positive possibility of its renainnsance? It is a good time now at least that ‘we, the people’ who gave ourselves this Constitution of liberty, equality, freedom, and justice begin to learn from the past and forge some approaches to answering difficult, and complex, questions.
There is no doubt that the legislative and executive powers are immense and can adequately serve combat impoverishment and promote just development. The future of justice and human rights, and the path of law, lie in mutual respect among governance institutions and not in a brute will to executive power.
The second 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].
Professor Baxi, Thanks for your post. I would be interested in getting your reactions on (1) whether the Court should have read down the NJAC amendment instead of striking it down. It seems pretty clear that the Court could have read down the role of the two eminent persons, or claimed that they needed to be former judges appointed by the Court, etc. This might have been a good compromise – ensuring the CJI and judges primacy, but also adding transparency, increased consultation, and more significant government involvement; (2) since they didn't and they now have suggested reforms to the collegium for early November, what do you think those reforms should entail? Presumably changing the actual voting structure of the collegium is not on the table, but instead we are looking at issues of process, comment, transparency, and stakeholder participation (including perhaps an advisory committee).
Thanks for the comments and greetings, Nick!
If you take basic structure– judicial independence as meaning the primacy of the CJI, collegium, and the SC- as the alpha and omega, there is not much scope for reading down!
The mechanism of advisory opinion I suggested to the then Union Law Mister, at a consultation with jurists) would have allowed the accommodative approach that you suggest. Further, the invalidity was incurred by he presence of the Law Minister in the NJAC; the majority ruled that this would in effect give the executive an overriding power, contrary to a long chain of judicial precedents with which executive had agreed. An amendment that would rework the NJAC preserving the primacy may be acceptable in the future.
As to what November 3 hearing may finally bring, one does not quite know; one thing is sure that many abundant suggestions to reform the collegium process would be received. I expect that some sort of consultation with the organized bar will feature heavily; so will proposals about transparency. Standards of accountability in appointments and transfers which can be said to violate independent judiciary are not likely to be accepted. All processes that do not infringe primacy of the collegium will be considered.