Thanks, Supreme Court, For Saving Us From Disaster

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 viewed negatively.

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 are paid.

4. Judges-appointing-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 candidate.

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.)