Finally, the Supreme Court has spoken boldly and decisively with a majority of 4:1 declaring that the 99th constitutional amendment to set up the National Judicial Appointments Commission (NJAC) is unconstitutional and void as it violates the basic structure of the constitution. And this was so primarily because it gave the executive a say, perhaps even a veto, in judicial appointments. It is not surprising that this constitutional amendment had wide support during both UPA and NDA days, as the executive has long been trying to get back its old authority to appoint judges.
As Justice Kehar, the presiding judge, wrote
"It is difficult 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. The
expectation from the judiciary, to safeguard the rights of the citizens
of this country, can only be ensured, by keeping it absolutely insulated
and independent, from the other organs of governance."
So, why was the 99th amendment (NJAC) declared unconstitutional and
void? The NJAC was to have six members: the Chief Justice of India
(CJI), two senior most puisne judges of the Supreme Court, the Law
Minister and two "eminent persons" selected by a panel comprising the
CJI, the PM and the Leader of the largest opposition party (LOP). But
then came the crunch. Any two of these six members could veto an appointment.
The judgement made it clear that it was opposed to the Law Minister
being a member of the panel as his very presence would impinge on the
principle of the independence of the judiciary and be contrary to the
separation of powers. And the presence of the Prime Minister and the
leader of the opposition in the panel to select the judges was also
I would submit there are two other objections. The government is the
largest litigant in the country and has the dubious distinction of
losing 80% of the cases in the Supreme Court. You have to be crazy if
you want the head of these "losers" to have a hand in selecting the
judges who will assess him.
Then we come to the two "eminent persons" - and who might they be? Well -
the three wise men (two of whom, the PM and the LOP, are political)
will decide. But just get a flavour of the kind of persons they could be
from the views of the learned Attorney General as expressed to the
Supreme Court. Here is The Economic Times on June 12, 2015:
"Rohatgi was circumspect when suggesting the kind of eminent persons
that the NJAC could have. They included film director Satyajit Ray and
Amul founder Verghese Kurien, both deceased, and that of agricultural
scientist MS Swaminathan and Microsoft founder Bill Gates. Rohatgi said
the appointment process must reflect diversity, have inputs from people
in other fields and be in sync with global developments. "The eminent
persons may or may not be jurists. That will be left to the discretion
of the troika (the Prime Minister, the chief justice of India and the
leader of largest political party in parliament)," he said. When
Chelameswar said Ray should be left to rest in peace, Rohatgi mooted the
name of another dead film director, Hrishikesh Mukherjee."
Ye, Gods, and this is the learned Attorney General! But what is worse is
that he believes that persons such as M S Swaminathan or Bill Gates
(were he Indian) could be good picks. This is truly amazing. I think the
"eminent person" should be looking at the candidate's past record -
most often as a High Court judge. Does the judge have a judicial
temperament? How sound is he on the constitution and the law? Has he
written articles in peer-reviewed journals? What is the quality of his
judgements? What was his record as a lawyer? Etc.
And the learned Attorney General expects someone with no knowledge of
law and no ability to assess these judicial issues to be able to help
select a Supreme Court judge in a few minutes (like the widely-reported
selection of IIT Directors in 10 minutes) or even an hour. And this to
select someone who is going to safeguard the constitution and judge
other weighty matters?
I think that having heard the learned Attorney General suggest these
names, the judges would have figured out the government's game plan and
decided that this was one more covert move to recover the executive's
power over judicial appointments. The wounds inflicted on the judiciary
during the Emergency by Indira Gandhi's government are still raw.
Their Lordships did not mince their words saying it would be
"disastrous" to include lay persons without expertise on the selection
panel and proceeded to junk the constitutional amendment.
The government, a part of the political class and some legal
heavyweights have risen up in arms. The most extensive defence of the
government, in various fora, has come from Ravi Shanker Prasad, Minister
of Telecommunications and a senior advocate of the Supreme Court. He
has also found support from Abhishek Manu Singhvi of the Congress,
another senior advocate of the Supreme Court in The Times of India.
This is as it should be for it is as much a UPA amendment as of the NDA
and the UPA should stand up for it and not seek to weasel out of it.
Across his various media interactions, Mr Prasad (and those who back his
views across the political, legal and journalistic spectra) makes
several points and I would like to take up each one of them:
1. Sovereignty of Parliament
Here is a quote from Mr. Prasad in The Indian Express:
"While holding very dearly the principle of independence of judiciary, I
regret to say that parliamentary sovereignty has received a setback
today... Questions have been raised on parliamentary sovereignty, (emphasis mine)" said Telecom Minister Ravi Shankar Prasad at a press conference at the BJP headquarters.
In Britain, which does not have a written constitution, there is a
concept of Parliamentary sovereignty. But times have changed even in
Britain. Today, some British laws can be set aside either by the Supreme
Court of the UK or by the European Court of Justice or by the European
Court of Human Rights.
But parliamentary sovereignty in the Indian context? That's a new one on me.
Where does it say in India's written constitution that Parliament is
sovereign? Can some politician, however learned, decide that Parliament
is sovereign? Under the Indian constitution, the executive is
subordinate to the legislature and the judiciary is independent. Like in
the US's written constitution, the concept of legislative sovereignty
is alien to the Indian constitution.
If anybody, "We the People" are sovereign; the Constitution of India
("the only book" as Prime Minster Modi recently called it) is sovereign.
And let not the learned senior counsel and minister forget the ringing
words of the great jurist Lord Justice Denning: "Be you ever so high,
the law is above you."
2. The role of the judiciary and the political class during the Emergency
In a TV interview, Mr. Prasad rightly pointed to the shameful role of
the judiciary during the Emergency. For those who do not remember that
disgraceful episode, let me briefly set out the case: in the infamous
Habeas Corpus case, the Supreme Court went against the decision of nine
High Courts and upheld the right of Indira Gandhi's government to
suspend all fundamental rights during the Emergency. Four judges ruled
for the government; H R Khanna, the fifth judge, dissented. He was
superseded and resigned. Later, three other judges were superseded and
they resigned. I agree that this was the lowest point for the judiciary.
Mrs. Gandhi and H R Gokhale, her Law Minister, wanted to pack the court
with "forward looking" judges. Justice Hidayatullah (a former Chief
Justice of India) remarked that "this was an attempt of not creating
"forward looking judges" but "judges looking forward" to the office of
Chief Justice." So the executive was playing politics and cannot say it
was blameless in the matter.
Then Mr. Prasad says that it was the political class that fought the
Emergency. That is absolutely correct. Many went to jail - veteran
politicians like JP, Acharya Kripalani, Morarji Desai, Biju Patnaik, M
Karunanidhi, Atal Behari Vajpayee and L K Advani as well as up and
coming politicians like Arun Jaitley, who almost began their political
careers in jail. And hopefully Mr. Prasad will not want to forget the
newspaper owners, journalists and editors who stood up to a brutal
assault on our freedoms - owners such as Ramnath Goenka of the Indian
Express and CR Irani of The Statesman and journalists such as Kuldip
Nayar and Nikhil Chakravarty. Those of us who lived through the
Emergency remember what a traumatic time it was. As a nation, we must
honour these politicians and media persons and many other unsung heroes
for standing up to the Emergency.
But Mr. Prasad must also identify those who imposed the Emergency. It
was Mrs. Gandhi, a member of the political class, assisted by SS Ray, a
lawyer and a member of the political class. The proclamation was
mindlessly signed by another lawyer and yet another member of the
political class, Fakhruddin Ali Ahmed.
3. Quality of Judges - post-1993
Another point raised by Mr. Prasad concerns the quality of judges
post-1993. Here too, I do agree with Mr. Prasad. However, he does not
give any reason for this decline. May I suggest one hypothesis? That
concerns the breach of the Setalvad Doctrine in the 1990s. Under this
doctrine (named after MC Setalvad, India's first and longest serving
Attorney General), there was a standard rate of Rs. 1,040 for special leave petitions and Rs.
1,680 for final hearings. As a result, the differences in the earnings
of judges and lawyers were kept under reasonable control.
Then, with liberalisation, the floodgates also opened in the fees of
lawyers. Today, a top notch lawyer in Delhi with a few special leave
petitions or a couple of cases can earn more in one day than a Supreme
Court judge earns in one year! The obscene fees charged by Delhi lawyers
(not that Bombay lawyers charge much less!) have been set out on
September 16, 2015, in an article in The Mint.
In an interview to Maneka Doshi of CNBC, the recently retired Chief
Justice of the Bombay High Court, Mohit Shah, said that he had offered a
judgeship to a good, young lawyer. The person had almost accepted.
Then, one day, he told the Chief that he would have to decline the
offer. On being asked the reason, he said that his son had been admitted
to a foreign university and he would be unable to pay his fees from the
salary that he would get as a judge. So, there we have it, Mr. Prasad.
The executive is populated by lawyers but it does not occur to them that
it is they who are responsible for the declining standards of
applications for judgeships. The sanctioned strength of judges in the
High Courts and the Supreme Court is just over 1,000. Let us assume that
we need 1,200 judges. As a nation, would it kill us to pay them each Rs. 20 lakh per month, i.e.around Rs. 2.5 crore per annum?That would cost the nation Rs.
3,000 crore per annum. But, the executive, prodded by the bureaucracy,
has pegged the emoluments of judges at levels similar to those of senior
bureaucrats. This is an invidious comparison. The judges interpret the
laws and the constitution and good lawyers take an enormous drop in
their earnings to become judges. There is a limit to the amount we can
expect lawyers to sacrifice for the public good. Mr.Prasad is an eminent
lawyer and has also been the Law Minister. Mr. Gowda, the current Law
Minister, Mr. Jaitley, another former Law Minister, and Mr. Prasad will
earn the nation's gratitude if they change the manner in which judges
I also agree with Mr. Prasad that only judges-appointing-judges does
leave something to be desired. As the dissenting judge Justice J
Chelameswar writes: "There is no accountability in this regard. The
records are absolutely beyond the reach of any person including the
judges of this Court who are not lucky enough to become the Chief
Justice of India. Such a state of affairs does not either enhance the
credibility of the institution or good for the people of this country."
The Supreme Court judges are the guardians of our Constitution. What
happens if a Collegium turns rogue? As the Roman poet Juvenal wrote:
"Quis custodiet ipsos custodes?" ("Who will guard the guards?")
While I concede that the judiciary should provide the lead in judicial
appointments, "We the People" need to see some openness in the
appointments and some "outside" participation. In fact, the judges also
do not think the Collegium system is an ideal system but, for the time
being, we are back to the Collegium system.
Incidentally, while this case was going on, no new appointments were made and a humongous 397 vacancies of judges have piled up in the High Courts.
5. The tyranny of the unelected
Mr. Prasad laments the tyranny of the unelected over the elected. I am
afraid I have little sympathy for this view. The constitution has laid
down that judges not be elected, but it does not say that this unelected
status gives them no ability to right wrongs inflicted by the elected
executive! In the US, judges are elected in 39 states. The candidates
campaign as if they were standing for election to the state legislature
or the governorship. They collect funds, lay out their personal views,
even if against established laws, on matters such as abortion, gay
rights, Medicaid, gun control, capital punishment, etc. I wonder if Mr
Prasad would prefer to have such judges with openly known positions
sitting on the Bench.
So what happens now? The Supreme Court has asked the government and
other supporters to get back by November 3 with their suggestions. While
the Supreme Court has struck down the NJAC, it too is aware of that
fact that the 'judges-appointing-judges' collegium system is not
transparent and is also plagued with problems. We have clearly had a
number of unsuitable, questionable and dodgy appointments.A
few years ago, there was the case of a senior judge "pushing" for the
appointment of his sibling, who, from all accounts, was not a suitable
No system is perfect. The original system was not. The collegium is not,
and the next system will not be. But I do not think it is beyond the
ingenuity of our legal and political minds to evolve a system that,
while giving primacy to the judiciary, involves 'outsiders' and keeps
its excesses under check. But currently, the distrust of the executive
is so great that it can play only a minor role, if that, in the process.
Prashant Bhushan has suggested a system and I am sure many others will.
The political class too can think of something that passes muster.
We need first-rate judges - because they are the final word in a
democracy. Many top-notch lawyers would be willing to accept judicial
positions if they were better compensated than they are today. And thus
give us a judiciary of which all of us can be proud.
(Dorab R. Sopariwala is Editorial Adviser at NDTV and writes on political and economic issues.)