Illustration: Jayachandran/Mint
Illustration: Jayachandran/Mint

Worrying prospects of institutional mistrust

It is time for different stakeholders to strike a compromise

Fali Nariman, one of the most eminent jurists in India, in his excellent book The State of the Nation, quotes the “dragon lady" of Asian politics, Madame Nhu: “All power is delightful and absolute power is absolutely delightful."

While Nariman was indicting politicians, Indian judiciary cannot claim exemption from this behavioural trait. In the past 15 months, both the legislature and the judiciary in India, trying their hands at absolute power, have attempted to checkmate each other. With no end in sight if escalatory tactics are resorted to, the legislature, led by the executive, should declare unilateral ceasefire. In other words, the executive should refrain from insisting on a major say in the appointment of judges.

The National Judicial Appointments Commission (NJAC), as conceived by Parliament last year, consists of six members: the chief justice of India, two seniormost puisne judges of the Supreme Court, the Union minister of law and justice, two eminent citizens to be nominated by a committee consisting of the prime minister, the leader of opposition and the chief justice of India. NJAC, as the bill laid out, was to replace the current collegium system where the chief justice of India consults the four seniormost puisne judges of the Supreme Court and two seniormost puisne judges of the high court for Supreme Court and high court appointments, respectively. The law passed by Parliament was struck down as unconstitutional by the Supreme Court on Friday in a 4-1 judgement.

The Supreme Court derives its reasoning from the famous Kesavananda Bharati vs State of Kerala (1973), which takes away the power of Parliament to amend the “basic structure" of the Constitution while making the highest court an arbiter on what constitutes the basic structure. The independence of the judiciary can, without serious challenges, be assumed to be a part of the basic structure of the Constitution. However, the manner in which this independence is institutionally preserved can be subject to differing opinions. The argument that the collegium system adheres to the basic structure any more than the NJAC is not very tenable. The Constituent Assembly had, in fact, never discussed the collegium as one of the options to appoint judges.

The text of the Constitution provides for the executive, via the president of India, to appoint judges in consultation with the chief justice of India. The executive, staying true to Madame Nhu’s words, often gave the consultation process a short shrift. SP Gupta vs President of India (1981), also known as the First Judges case, made the consultation with the chief justice mandatory. While this was welcome, the subsequent steps the Supreme Court took in what are famously called the Second Judges (1993) and the Third Judges (1998) cases can most generously be described as creative interpretation of the text of the Constitution. In 1993, the Supreme Court granted the chief justice of India the veto in the appointments process. In 1998, the Supreme Court effectively undertook a rewriting of the Constitution in order to monopolize control over appointments by bringing the collegium into the picture. The executive was merely left with the option of rubber-stamping.

The fact that the executive had by then thoroughly discredited itself helped the judiciary a great deal in exercising—to borrow the words of Pratap Bhanu Mehta, an eminent constitutional scholar—the “jurisprudence of exasperation" with the state of affairs. What started with the objective to recoup the independence of the judiciary degenerated into a process with self-preserving ends. Opacity became a by-product of the process to gain the coveted independence as increasingly compromised appointments passed the muster. The fragmented nature of politics since the late 1980s ensured that the required consensus to challenge the usurpation of powers by the judiciary continued to elude Parliament.

When a single-party majority government came to power in 2014 after three decades, the matter inevitably came to a head. The misplaced hubris and the delight of the perceived absolute power borne out of an overwhelming mandate produced a legislation which over-corrected for the ills that had crept in. A more conciliatory legislation that would have unequivocally preserved the judiciary’s majority would, in all probability, have cut the ice with the Supreme Court—given the latter’s interpretive room over the basic structure.

The sad takeaway from the entire episode is that the extent of institutional mistrust is so deep that a consensus based on first principles flowing from the intent of the Constituent Assembly is no longer a feasible alternative. The second best choice necessarily involves accommodating, if only partially, the self-serving interests of different stakeholders.

How should Parliament respond to the Supreme Court judgement on NJAC? Tell us at views@livemint.com

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