Denting democracy

India is heading for judicial authoritarianism as the system of checks and balances has gone askew

The ongoing verbal war between the executive and the judiciary over the appointment of judges is unfortunate, but if any blame is to be apportioned, the latter must take the lion’s share of it. The judiciary has arrogated powers to itself that were not mandated in the Constitution, and this lies at the core of the conflict.

A week ago, a Bench headed by Justice Sanjay Kishan Kaul expressed anguish at the government sitting on the Collegium’s recommendations for fresh appointments. He said the executive may be peeved over the court’s decision to overturn the National Judicial Appointments Commission in 2015, but it has to respect the verdict. “This is the law of the land, and it has to be followed by all.”

A historical digression would serve to illustrate how self-aggrandising this statement seems. In the 18th century, before the French Revolution challenged the power of the monarchy, France had two remarkable monarchs, Louis IV and Louis VI. The former, also known as Louis the Great, is reported to have said, “L’état, c’est moi”. The quote is probably apocryphal, but the literal translation of it in English is “The state, it’s me”. Loosely, it means “I am the nation” (or state). Two Louises later, Louis VI, who often got into fights with his parliament, had this to say in April 1788 after he junked a law passed by the latter.

“When I meet with my parlement, it is to listen to discussion of the law that I bring there, and to decide for myself…with all the facts before me. That is what I did on November 19th last. I listened to the deliberations. There is no need to sum them up except when I am not present at your deliberations… When I am present, I judge the sense of the meeting for myself…If the majority of the parlement were able to go against my will, the monarchy would be no more than an aristocracy of magistrates, as harmful to the rights and interests of the nation as to those of the Sovereign. It would indeed be an odd constitution that would reduce the will of the King to the equivalent of the opinion of one of his officers… I must protect the nation from such a misfortune…”.(Source: https://bit.ly/3uviDAp)

Now substitute the Supreme Court for Louis VI, and one could sum up the judiciary’s view of its powers thus: “We have listened to what Parliament had to say about judicial appointments through the NJAC, but here we decide not only what it means, but what the law should actually be.” What the SC Bench was saying is that the Constitution can be amended by Acts of Parliament, even unanimously, but we decide if it is acceptable or not. And what we finally decide is the law of the land, not what is enacted by elected and accountable legislatures. Never mind that the Constitution does not say anything of the kind on judicial appointments.

Article 124 (2), which deals with appointments to the constitutional courts, says, inter alia: “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years; Provided that in the case of appointment of a judge other than the chief Justice, the chief Justice of India shall always be consulted.” 

How did the Supreme Court read a role for a self-created collegium to decide it will select and appoint judges, with the government getting only the right to seek a review. But the final call is that of the Collegium. This is the exact opposite of what article 124(2) says, which puts the President (or the cabinet) as the prime mover in this regard.

Illustration: Binay Sinha

 

Clearly, the Supreme Court read itself into the role of the chief appointer of judges by using a special provision in the Constitution, article 142 (1), which allows it to make the law. Article 142 (1) reads, inter alia: “The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament…”. 

This clause allows the Supreme Court not only to interpret the law, but also write its own laws, never mind what the Constitution has to say about it. Of course, even if Parliament legislates a constitutional change, it can junk that. The Constitution is what the court says it is, and what goes into it can also be sent to the scrapyard.

In recent years, the court has got deep into law-making. Everything, from the validity of the government’s decision on genetically-modified mustard to vaccine policy to additional taxes on SUVs entering Delhi, to the correctness of the pricing of Rafale aircraft to highway bars and even policing the police is now part of the Supreme Court’s job. Recently, it has asked whether Election Commissioners (ECs) should not be appointed by a three-member panel, including the Chief Justice. Remember, the EC is a constitutional office, and, despite some lapses, it has kept our elections free and fair. In future, one can wonder if the court will inject itself into the selection of state governors to prevent any excess politicisation of the office. Its willingness to entertain all kinds of alleged “public interest litigation” ensures that it can get into almost any issue that is now part of legislative or executive domains.

It is customary to blame the executive and politicians for accumulating excessive power in their hands, but in India, there is a strong case to believe that it is the higher judiciary that is growing increasingly authoritarian and unaccountable. There is a strong case for abolishing article 142, and amending article 124 to clearly reflect a reasonable role for the executive and parliament in selecting judges. The government must reach across the political aisle and obtain a parliamentary consensus on this.

Law-making and rule by the judiciary is kritarchy, not democracy. The delicate system of checks and balances that keeps a democracy alive has been set aside by the judiciary. The judiciary must shed its Louis VI pretensions.

The writer is the editorial director of Swarajya magazine