The Hindu : For a national judicial commission

Online edition of India's National Newspaper
Wednesday, Oct 30, 2002

Opinion

Opinion - Leader Page Articles

For a national judicial commission - I

By V.R. Krishna Iyer

The judges must remember that the Constitution is above them. There has been widespread demand that judicial appointments are far too paramount to be left to the judges themselves.

"SUPREME BUT not infallible" is the title of a publication by the Supreme Court about itself. Fallible it is, but because it is final too, the remedy for its institutional errors, when they are grave, has to be by Constitutional Amendment. To err is human and judges are human. One such errant situation has arisen where, in what is popularly known as the Second Judges Case, the Supreme Court, reinforced in a later ruling, has wrested the power of appointment of the members of the High Courts and Supreme Court from the Executive altogether, based on a transcendental theory of Judicial Institutional Independence. The Constitution expressly denies this monopoly in the text and in the Constituent Assembly proceedings. Two judges disagreed but seven, forming the majority, gained an arithmetic victory. But that is the law since the Constitution is what the judges say it is, even if the ruling be by a sharp division. The world over, the power to appoint judges is either with the Executive or in consultation with the top judicial echelons but never to the exclusion of the Executive.

Judicial independence is made of sterner stuff as America's great judges have demonstrated, Lord Atkin and his kind in the United Kingdom have provided through luminous instances and Indian heroes and martyrs in robes have earlier blazed the trail. Hunger for power to appoint, disguised under cover of protection of institutional independence, is interpretational euphemism. The Constitution is clear. It lays down that the appointment of the higher judiciary shall be by the President "after consultation with" the Chief Justice of India and such other judges as he may "deem necessary". To `consult' is not to surrender, nor concur. And yet, their Lordships discovered in Article 124 the opposite of what B. R. Ambedkar emphatically asserted was the intent and sense of the Constitutional provision.

Independence of the Judiciary is absolutely basic to democracy and it needs no judicial rhetoric to drive home the point. Human rights are but a mirage without a free and fearless justice system. Our founding fathers have made sufficient provision, consistent with pragmatic limitations, to defend the institution against executive, legislative or other interference. In theory, the Judiciary has neither the purse nor the sword, as part of its institutional authority, but reading the Constitution — Articles 141, 142 and 144 — together with the guaranteed retirement age and contempt power, I have no hesitation to hold that the Indian Judiciary is freer than any other high curial organ, including the mighty law lords in the U.K. and the robed brethren in the U.S.

The fundamental issue is whether the total functional autonomy of the Judiciary is liable to be influenced by the appointing authority being the President, that is the Prime Minister. There are great institutions which call for independent operation such as the Comptroller and Auditor-General and the Election Commission but the incumbents thereof are appointed by the nation's Chief Executive. For over 50 years, the higher judiciary in India has been selected in consultation with the Chief Justice and appointed by the President according to the Prime Minister's choice. Is it conceivable for any judge of the Supreme Court to hold that the CAGs and the CEOs, the judges of the High Courts and the Supreme Court, who technically owe their selection to the Prime Minister or the Cabinet, were pliable tools in the hands of the Government? It would be libel to suggest so. If the Chief Justice of India and some of his colleagues were to be given the power to select, does it mean that those selected would be stooges of the CJI who, having been appointed by the President, would be supple to oblige Government interest since in his time he must have been an appointee of the President? The several judges who by majority (The Second Judges Case) ruled that the CJI must have the right of primacy were themselves in their time chosen by the Prime Minister and yet dared to challenge his impartiality and integrity. Chief Justices are also human and cannot be exalted into quasi-divine status. It is unfortunate that the `consultation' used in the Constitution has been exaggerated beyond the limits of "ordinary lexical definition".

I am unhappy to disagree with the view which has weighed with the eminent majority in the Second Judges Case which runs peroratively as follows: "The foregoing considerable deliberation leads to an inexorable conclusion that the opinion of the Chief Justice of India in the process of constitutional consultation in the matter of selection and appointment of Judges to the Supreme Court and the High Courts as well as transfer of judges from one High Court to another High Court is entitled to have the right of primacy. In sum, the above logical conclusion and our social sense dictate: "Like the Pope, enjoying supremacy in the ecclesiastical and temporal affairs, the CJI being the highest judicial authority, has a right of primacy, if not supremacy to be accorded, to this opinion on the affairs concerning the `Temple of Justice'. It is a right step in the right direction and that step alone will ensure optimum benefits to the society." (AIR 1994 SC P-342 Para 211)

I disagree with the papal infallibility attributed to the highest echelon in the Judiciary. To deify is to be egregious. The administration of justice is of such paramount importance in our human rights era that the process of appointment should be so exalted that the person selected is the best choice. The Constitution assigns the highest place to justice; and justices occupy the highest place in the Constitutional scheme. There is no doubt, therefore, that the methodology of appointment should measure up to the inviolable majesty of the office and the high value of justice delivery itself to the people as a whole. In the U.S., the President, with transparent political motive, makes his selection. But the Presidential nominee has to undergo a Senate examination of his record and jurisprudential belief. The tasks of the President and the Senate are facilitated by the practice of the American Bar Association of assessing the worth of the nominee. There is an element of exaggerated populist invigilation by the Senate Judicial Sub Committee. This procedure may not apply to Indian conditions and need not be transplanted to our land. In England, judges are chosen without any public discussion of their identity or merit. I wholly agree that the Judiciary is high above many another constitutional functionary: "Even though all the constitutional functionaries have their own constitutional duties in making appointment of judges to the superior judiciary, the role of one of the principal constitutional functionaries, (namely, the Judiciary) is incontrovertibly immeasurable and incalculable. The task assigned to the Judiciary is in no way less than those of other functionaries — legislative and executive. On the other hand, the responsibility of the judiciary is of a higher degree. As frequently said, the Judiciary is the watchdog of democracy, checking the excessive authority of other constitutional functionaries beyond the ken of the Constitution. It cannot be disputed that the strength and effectiveness of the judicial system and its independence heavily depends upon the calibre of men and women who preside over the Judiciary and it is most essential to have a healthy independent judiciary for having a healthy democracy because if the judicial system is crippled, democracy will also be crippled." (AIR S.C 1994 P-343/344 Para 217)

Having said all this, the judges must remember that the Constitution is above them. There has been widespread demand that judicial appointments are far too paramount to be left to the judges themselves and that a National Commission which accords high judicial participation, but admits of the higher echelons of the Executive and perhaps and other relevant outstanding elements, may be the appropriate machinery.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Rhetoric and reality

For investors' benefit

De-freezing Kashmir

For a national judicial commission - I

Seizing the moment...

Address real cause

Linking rivers

Tackling terrorism