By striking down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act because they tamper with the basic structure of the Constitution, and are therefore ultra vires of it, the Supreme Court may have decided that the collegium of judges alone will continue to appoint judges, the process suitably revamped to address its serious shortcomings. But the jury is out, if the idiom is not inappropriate here, on whether and how this ruling might affect the sovereignty or the supremacy of Parliament. Those in agreement with the judgment have hailed it as a reaffirmation of the principle of the separation of powers, which is a cornerstone, a basic feature, of the Constitution. Those against throw dark hints of the representative will of the people, expressed in and through the legislature, being scuttled, and it boding ill for the future of democracy.
The naysayers question the in-group process of judges themselves appointing other judges, and point, assumably as examples to emulate, to the role of the Executive in judicial appointments in the United States and the absolute supremacy of the legislature in the United Kingdom. Finance Minister Arun Jaitley (himself a distinguished lawyer) more than tips-toes around it when he rues the ruling in his Facebook posting with terms like “tyranny of the unelected” and “erroneous logic” and recalls how the judges had capitulated during the Emergency. “Political bashing”, he alleges, “is the key to the judgement” and is, moreover, “akin to the 9.00 p.m. television programmes”. He avers that “there is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected”.
Not quite so, it would appear from the considered opinion of a number of jurists and legal scholars who have gone into the question of legislative action versus judicial interpretation in a constitutional democracy. In his illuminating book, The Rule of Law (Penguin Books, 2010), the eminent British judge Tom Bingham points out how British parliamentary sovereignty is distinct from “all other members of the European Union, the U.S. , almost all the former Dominions and those former colonies to which this country granted independent constitutions. In all these countries the constitution, interpreted by the courts, has been the supreme law of the land, with the result that legislation inconsistent with the constitution, even if duly enacted, may be held to be unconstitutional and so invalid”.
Justice Bingham cites academics and jurists who “have suggested that Parliament is not, or is no longer, supreme and that in some circumstances the judges might, without the authority of parliament, hold a statute to be invalid and of no effect because contrary to a higher fundamental law or to the rule of law itself”. The Constitution, in this scheme of priorities, is the supreme and enduring embodiment of the will of all the people, even more so than Parliament which reflects the will of the majority of the people at a given time. The vaunt of an 18th century writer made famous by Professor Dicey “that Parliament can do everything but make a woman a man, and a man a woman” becomes, in this sense, rhetoric of omnipotence that rings hollow because, as the British jurist Professor Sir Francis Jacobs observed in his Hamlyn Lectures ( The Sovereignty of Law : The European Way ; 2006), “Legally it is difficult, if not impossible, to identify today a State in which a ‘sovereign’ legislature is not subject to legal limitations on the exercise of its powers.”
The concerns about the lack of transparency in the collegium system of appointing judges and the quality of judges it yields are real and important, and, as the judgement itself indicates, these and other widely perceived flaws in the process are ostensibly to be tackled by the Supreme Court. But a larger issue of autonomy versus heteronomy seems as pertinent here. The Act and the Amendment posed the risk of rendering judges heteronomous, open to external influence, and thereby of eroding the autonomy of the institution and the judicial process. We are already into a situation where the media and the market are eating into the professional integrity and moral fibre of intellectuals in society. Surely judges, more than any others, need to be insulated from the pulls and pressures, the fears and favours of party politics. The current ruling of the Supreme Court is a reminder that the check and balance that the principle of separation of powers sets in motion is work in progress and will always be so. While judicial overreach often translates into judicial activism that is, more often than not, welcomed by the common man (but must perhaps nevertheless be resisted for reasons of constitutional propriety), executive and legislative overreach have no such benign construct. The one gave us the Emergency—and it is certainly pertinent to take seriously the note of caution coming from the veteran Bharatiya Janata Party ( BJP) leader L.K. Advani that we may be heading for another Emergency—and the other the phenomenon of a former speaker of the Tamil Nadu Assembly, P.H. Pandian, who claimed sky- high powers and, in 1986, actually went on to acquit three persons convicted by the Madras High Court, saying he was only “correcting” the court’s judgment.
Arun Jaitley, usefully for the purpose of this column, finds something in common between the judges and the media in what he thinks is their distaste for the political class. He is of course only perhaps referring to those giving the majority ruling in this case and to the section of the media he sees as very abrasive to the politician. But his clubbing the judge and the journalist helps raise the putative role of the fourth estate, or the fourth pillar of democracy, as an instrumental, even if not constitutional, stakeholder and player in the separation of powers. The Executive, the Legislature and the Judiciary are the three formal constitutionally prescribed pillars whose functions and roles need to be kept separate and they check and balance one another. The fourth pillar, comprising the news media, too, needs to be kept separate and has a check and balance function. As Umberto Eco has pointed out, this fourth pillar may not be constitutionally accountable to the people in a democracy, but then that is precisely the way it should be because, it is only one of the other three pillars—the Executive, the Legislature or the Judiciary—that will have to make the fourth pillar so accountable, and in that event it would no longer be a free press. And a free press is as much a basic feature of democracy as the separation of powers is of the Constitution.
This is why all talk of an external regulator of the press is abhorrent to democracy. It must be allowed to function separately and freely. To be adversarial, particularly to the state, is its natural function. The judiciary, too, must be allowed its inviolate space and left to its own devices, including peer evaluation without external influence and in strict autonomy, to select judges.
What is really needed to buttress the role of the fourth pillar and protect it from the increasing disdain and intolerance of the other pillars is to make what is implicit in Article 19(1)—about freedom of expression, from which freedom of the press is currently inferred—explicit by introducing freedom of the press as an express right through an amendment to the Constitution. That, rather than a role for the executive or legislature in the appointment of judges, would be something to borrow from the experience of the U.S. But then such a step requires political farsightedness and will and must be based on the calculation of how far-reaching it will be in consolidating our democracy rather than of the level of discomfiture the press may cause the political class.