Karan Raj Kalra
The long-tested and symphonic tale of the direct will of the people and the will of the guardians of democracy, in India at least, unfolded with the putting forward of a certain Article 39-A, on the 24th of November, 1949. As Dr. Ambedkar addressed the Vice-President of the Constituent Assembly, the policy of separation between the Judiciary and the Executive began to take shape. The article, now recognised by the number fifty, was principally making waves through the subcontinent at the time of it’s formal institution. It was floated up from the experiences of the Empire and it’s practice of giving executives the control over Judicial process, wherein, on some instances the District Magistrate would also preside as the administrator of justice; this was seen, rightly so, as fundamentally unfair.
Constitutionally, the appointment, removal and conduct of Judges stipulate intervention by the Executive and by the Parliament at large, all in an effort to maintain the system of check and balance which we proclaim adherence to. On a reading of Article 124, where we find the NJAC recommendation, it can be deduced that the role of the courts in selecting judges can be dominated by political order. The six-member committee, consisting of the Chief Justice of India, two judges of the Supreme Court, the Union Minister of Law and Justice and two other members who are to be eminent personalities. It does not take into account that on some occasions, the sub committee for selecting the eminent persons; which is of the CJI, the Prime Minister and the Leader of Opposition; can create a situation where the latter two may find concurrence. If that is so, then the subcommittee can promote members even after refusal by the Chief Justice of India.
Now, in the main committee; three judges and the Union Minister of Law and Justice, with the two eminent persons, can create a deadlock, where we may find a three-three position provided that the Union Minister builds a political rapport with the eminent persons, due to them being appointed essentially by members of Parliament. So, the political influence is clear. Already, the Collegium system is being criticised to the extent of it being on it’s last legs, in public opinion of course; and knowing that the NJAC amendment was made dysfunctional in Supreme Court Advocates-on-Record Association v. Union of India (2016); it should be recognised as a step closer to viable reform and if the deadlock position can be changed, it may emerge as a positive solution. Moving to the financial aspect, the Parliament holds the power to determine the salaries of Judges, which it can legally decrease. This does provide a great method to the Legislature to indirectly harm the Judiciary, be it for reasons of financial instability or a nationwide crisis. Regardless of motive or circumstance, the mere existence of this provision does entail use, if not now then maybe sometime in the future.
The situation can also recoil, with many Judges who try to enter the political arena. There are instances of judges joining political parties right after retirement or resignation. It is not to the character of these particular people but to the legal machinery, which allows such transitions. Upon a judge’s duty rests the expectations and hopes of the people, which can be shattered by these happenings. The talk of a cooling off period, which for now has been rejected by the Supreme Court, should not be expected to be taken up by Parliament any soon as it is of little advantage to them. On the contrary, it is to their favour of judges being politicised as it would give them even greater leverage over the courts.
The influence that a political system can extend is great, and political men are expected to act politically at all times. In this case, the Parliament is the powerhouse of all politics.
Removal; the motion is to be passed in Parliament and the report on the conduct of the particular judge on trial, even if prepared by a committee consisting of only judges, is to be submitted to the Speaker of the House. In that case, even the Chief Justice of India reports to Parliament, a peculiarity considering that the system is supposed to ensure that the balance between the three bodies is always maintained. The reasons for not providing the Judiciary with greater powers can be found in the Constituent Assembly debates, wherein it was stated by T. T. Krishnamachari that the provision of enormous powers to the Judiciary might create a situation similar to the United States at the time of the Presidency of Theodore Roosevelt. The judiciary would interfere in the liberalisation policies of the government, which would stifle progress. He saw the bulk of judicial officers as below the sufficient standard and advised against a constitutionally stronger judiciary.
After 75 years of active judicial work, it is safe to say that the calibre of the judicial officers has reached a stage where they can be trusted with morepower, having already safeguarded the constitution multiple times; the prime example being the Keshavananda Bharati Judgement of 1973. Even if it was in relation to the Land Reforms Act of the Kerala Government, the manner in which the “Basic Structure” doctrine was formulated gave the Court the ability to restrict Parliament from curtailing the Fundamental Rights on their own accord. Regardless of wether it was intended in that manner or not, the mere happenstance shows the Court’s loyalty to the Constitution. It is in complete antonym to the Legislature, which took away the Judicial review from the hands of the Supreme Court by the 25th Amendment Act, 1971 (which the Keshavananda Judgement changed). Hence, in view of the turn of events, it can be considered safely that the judiciary needs to be made more active, or in other words, Judicial Activism should take centre stage.
Noting the above, Judicial adventurism, by all means, should be avoided; any transgression of the judicial powers is to be discouraged to prevent a hegemonic Supreme Court. The fascinating aspect is that “Judicial Overreach” is termed for only those actions which are taken arbitrarily; if however, the actions are protected by legislation or traditional practices, it does not translate to overreach at all, even if it is transgressive by nature. Something which already has been going on for long is not questioned as much as something which is novel. Hence, for example, if the Supreme Court evolves a novel practice (practice here means by mere habitual action and not something which is written in law), whereby all Constitutional Amendments are to be subjected to Judicial review; it would be a move that should strengthen the stature of the court in lieu of a naturally aggressive Parliament. If done correctly, and under the guise of an extra measure of good faith, it serves as an efficient hurdle for amending the constitution, ensuring that Parliamentary action is regulated to a certain extent.
For now, the “suo moto cognisance” is the main instrument by which the Indian court can exercise a check on government power; even this needs to be applied in a greater number of situations in order to push back upon the rampant decrees of the legislature. A similar watershed period was experienced in the history of the United States through the 1930s, where the Supreme Court undertook resistive action against the Presidency in the view of it’s growing administrative influences, thus securing it’s position as coplanar to the Congress. The suggestion would be to follow in a parallel fashion.
Regardless of the Government or the ruling party, the principles governing the forms of power through the vote will remain the same, be it Macedonian Athens or Democratic India. The men at the helm of power remain too keen to exercise it, while the protectors remain too unkeen to extend theirs. Hence, a touch of greater exousía (Greek for power) at the Judge’s table should ensure that the Constitution remains sacrosanct, as it is and hallowed, as it should be.
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