Rahul Sharma
Working of any Constitution, how perfectly codified it may be, is always subservient to the men occupying high constitutional offices. Lord Acton once said ‘Power tends to Corrupt and absolute power Corrupts absolutely’, this corollary fits well in the working of Indian Constitution in the context of Governments with absolute majorities vis a vis Judiciary, when Government’s Direct and mostly tacit interference towards Independence of Judiciary becomes manifest.
‘Justice’ under Indian Constitution is not limited to any single theory and certainly ‘Independence of Judiciary’ is sine qua non to reinforce people’s faith in ‘Judiciary as an Institution’ where people exercise their fundamental right of access to Justice under realistic jurisprudence. With the Constitution, ‘We the people of India’ set up amongst others the Constitutional goal of securing ‘Justice’ but it is imperative to look into how the Governments with absolute majorities transgressed from their domain and interfered with the Independence of Judiciary. Some historical anecdotes that scripted dark chapters in Executive-Judiciary relationship shall not be revived again in the growing Indian Democracy.
24.04.1973; Basic Structure and its political overtones: Supreme Court of India with majority of 7:6 passed a historic judgment, whereby Parliament’s power to amend the constitution was upheld subject to the implied limitation that such power does not mean to include the power to destroy the ‘basic structure’, the fundamental features of the Constitution. The Political repercussions of the judgment led to the appointment of Justice A.N. Ray, as next Chief Justice of India in supersession of three senior most judges, Justices J.M. Shelat, A.N. Groverand K.S. Hegde. Resultantly the three Judges resigned.
Another infamous case at the time of emergency when Supreme Court in the ADM Jabbalpur Case (famously known as habeaus Corpus case) by majority judgment (4:1) closed its doors for citizens against arbitrary arrests and malafide detentions, a major setback to life and liberty. Even at that time Justice H.R. Khanna, the lone dissenter refused to bow down to the mighty state and held that life and liberty are not the gifts of constitution and even in the absence of Article 21 state has got no power to deprive a person of life and liberty without the authority of law. But the absolute majority rule of the time reciprocated with supersession of Justice Khanna and Justice M.H. Beg (number three in seniority) became Chief Justice of India. Justice Khanna resigned but immortalised with the principles of liberty and freedom.
Recently the majoritarian intervention is also seen in elevation of Justice K.M. Jospeh, who is known for the Judgment in April 2016 that struck down the imposition of President’s rule in Uttrakhand.Perhaps he is known for the historic judgment that his elevation to the highest court faced a backlash of re-consideration from the present majoritarian rule. Fragility of reasons were there viz Seniority at the levels of High Court, regional Representation, representations, representation of SCs & STs etc. but the underlined message was clear to all,that executive’s attitude towards Judiciary remains same while in absolute majority and its immaterial which party is in power.
The Constitutional framework in the appointment of judges in the Constitutional Courts has developed in the backdrop of emergency, supersessions, legislative interventions in the matter of appointments and transfer of the Judges of High Courts. The appointment of judges in Constitutional Courts is better understood in the light of interpretation of words ‘consultation’ under Article 124(2) and Article 217(1) of the Indian Constitution and the interplay of term ‘primacy of opinion’.
In 1974 in Samsher Singh case, the Supreme Court while emphasizing on the cardinal principle of “independence of the judiciary” stated that consultation with the Chief Justice of India, in practice meant, the primacy of Chief Justice of India, in the matter of appointments of Judges to the higher judiciary, must rest with the judiciary. This position was reiterated in 1977 in the Sankalchand Case by holding that in all conceivable cases, “consultation” with the Chief Justice of India, should be accepted, by the Government of India and any departure to this would be open to judicial examination. Again the term ‘consultation’ as an expression was interpreted as conveying ‘primacy’ to the views expressed by Chief Justice of India.
In 1981 in First Judges Case, the opinion of the Chief Justice of India was given weightage but not ‘primacy’ and held that it would not be binding on the executive. The function of appointment of Judges to the higher judiciary was described as an executive function, and it was held by the majority, that the ultimate power of appointment, unquestionably rested with the President.
In 1993, in Second Judges Case, the earlier position was restored and First Judges Case was overruled and ‘primacy’ with reference to the ultimate power of appointment (or transfer) was held, to be vested with the judiciary (Collegium). The position remained same in Third Judges case with enlarged ambit of collegium and again in 2015 in Fourth Judges Case(NJAC) the ‘primacy’ rested with collegium. Now the position is that ‘primacy’ lies with Judiciary (collegium) and if the recommendation is returned by Executive to Chief Justice of India (Collegium) and the Collegium reiterates recommendation unanimously, then the appointment shall be made as matter of ‘healthy convention’.
The appointment of Justice K.M. Jospeh after the unanimous reiteration by collegium will be hailed as institutional commitment for ensuring Independence of Judiciary and will also be remembered as Majoritarian Government’s failure to rise above the conflicts by prioritizing constitutional goal of justice. The present skirmish is over now, as a ‘healthy convention’ remained healthy, nevertheless in a growing democracy like ours where elections are predominantly contested on the issues like castes, religions or regions, to expect from the men in power adherence and sensitivity to the independence of judiciary may be little utopian.In India where Government is the largest litigant, to ensure people’s faith in ‘access to justice’, such precedents (interventions) shall not again surpass constitutional principles.
Justice is the first virtue in a mature democracy and to uphold people’s faith in the ‘institution of justice’ is collective responsibility of the legislature, executive and judiciary with check and balance as a harmonious structure rather than a conflicting trinity.
(The author is an Advocate-on-Record
in Supreme Court)
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