In an earlier post (Judicial appointments- Has the procedure come a full circle?) of this blog, Kritika Vohra argued that judicial intervention in appointment of its judges was justified since it is the duty of the judiciary to serve as a counter-majoritarian institution and to protect its independence. In the passages that follow, I will take a position seemingly contrary to the one taken by her. The arguments I put forth will be based on the philosophical underpinnings of democratic institutions.
Lavanya Rajamani and Arghya Sengupta in their article titled “The Supreme Court” (The Oxford Companion to Politics in India: 2010) while examining various phases in the making of our truly powerful judiciary have identified “movement towards self-selection of judges in the higher courts” as one of the broad discernable feature in Supreme Court’s supposed fight to strengthen their institution. They contend that Supreme Court has virtually rewritten the Constitution and is now a “deeply paradoxical institution” with tremendous power but no accountability. I am in agreement with the authors.
A plain reading of Articles 124 and 217 would show that the framers of our Constitution intended the executive to be vested with power to appoint judges to the higher judiciary: “…shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court…”. Could they, by the word “consultation” have intended primacy to vest with the judges themselves? If that was their intention, would they not have used clearer language, something to the effect of “… judges in consultation with the President…”? Article 124 can be considered to be the cornerstone of the ‘Indian’ idea of separation of powers. Framers of our Constitution envisaged a judiciary, whose independence was not affected due to appointments of judges at the hands of executive. In other words, they considered a judiciary appointed by executive to be ‘independent’ enough to satisfy the Indian threshold of separation powers. In that sense, the judgments in SCAORA and Third Judges’ cases come across as undemocratic and blissfully ignorant of intentions of the framers of the Constitution.
Since the Constitution does not give it the power to appoint judges to itself, surely the Judiciary has ‘assumed’ this power on its own. Such an assumption of a vital democratic function without any legal source of authority is a trait of autocracy, not democracy. The very idea of democracy is distribution of power – spreading and expanding the decision making process among various institutions and its layers to take into account plurality of opinions and minimise biasness and favouritism. What the Supreme Court has done though SCAORA and Third Judges’ cases strikes the very fundamentals of these democratic values since it concentrates pervasive power in a single institution – and that too in relation to something as important as appointments to the highest court of the land. Supreme Court has become a self perpetuating institution with traits of boastfulness – considering itself to be the repository of knowledge of everything that is right for the country.
Scholars who support the post Third Judges’ case practice argue this – Since the executive has failed the Indian democracy and its people time and again by making Supreme Court appointments communal, casteist and parochial, there is legitimacy in the judiciary’s act of stepping into the shoes of executive. They argue that the country cannot wait for the executive and legislature to get their house in order and hence there is nothing ‘undemocratic’ in judiciary stepping up to do what executive ought to do.
This argument to justify the judicial act of “rewriting the Constitution” has an inherent weakness in its application. Various scholars and studies have told us about the 3 crore cases pending in our judicial system and various injustices that are caused time and again at the hands of judiciary in both criminal and civil cases – life times spent in litigation being the strongest. Then, will it be alright for the executive and legislature to step into the shoes of judiciary and assume some of its functions, given that judiciary is failing in its task? Judiciary cannot pierce separation of powers at its own will and comfort. The same moral norms should apply to all the institutions.
Ultimately, the question boils down to this – who do we trust more to do the right thing – the executive or the judiciary? History stands witness to the wisdom that we have not, we can not, and perhaps – if I can be so daring to say – we should not know the answer to this question. Trusting would imply putting our guard down, perils of which have been reminded to democratic people time and again. The buck, however, has to stop somewhere. Whichever form of appointment system we espouse – National Judicial Commission however plural, S. P. Gupta position, SCAORA position or the Third Judges’ position, one of these two institutions have to be given the final word.
We have no means to hold the judiciary accountable other than impeachment through our representatives in the Parliament. However, we can find some comfort in knowing that the executive, at least, has term limits in the form of elections, and hence can be held accountable for their unworthy, unpatriotic and unbecoming decisions. Indeed, history of our Constitutional democracy tells us that “we the people” have held them accountable time and again. With that comforting thought add the acknowledgement that a reasonable interpretation of the Constitution tells us that our founding fathers and mothers wanted the buck to stop with the executive as well, and then perhaps we will find ourselves closer to ending this debate.
This post has been authored by Sidhant Chandalia, a student at the West Bengal National University of Juridical Sciences and a member of the NUJS Constitutional Law Society.