AN innovative instrumentality to nominate members of the higher judiciary by a pro tem collegium composed of the seniormost Supreme Court judges is an egregious fabrication, a functioning anarchy. A frank, sad, but respectful reflection is that the authority to make the high-power appointments has been hijacked from the Prime Minister by a Constitution Bench. This has led to an odd imbroglio in judicial appointment jurisprudence. This is the transparent truth.
Craft must have clothes, but truth loves to go naked, wrote Thomas Fuller. Every authentic democracy is run by a hallowed trinity of high instrumentalities with constitutional credentials. Each is circumscribed by its limited supremacy but seeks happy institutional harmony and operational discipline. The judiciary corrects the executive when it is in error, or commits excesses or arbitrariness, without fear or favour. The legislature enjoys the law-making function and has a national inquest obligation, but when it acts beyond the constitutional contours or restraints, the courts have the authority to control or quash: the ultimate test is the mandate of the suprema lex. Subject to this judicial check, the House is sovereign.
But when the high bench itself breaches legal bounds or breaks out of the fundamentals, only a larger bench or constitutional amendment can set matters right or save the nation from robed arbitrariness. So plenary is the judiciary in its final authority to decide on many matters, on disputes between States and on issues of constitutional law. Therefore, the power to appoint to this lofty office is of critical moment and supreme significance.
Paramountcy is paramountcy and savours of superlative stature in the case of the Supreme Court as an instrumentality. So, who appoints the judges, invigilates their behaviour and performance and determines their destiny in cases of proved delinquency represents the peak of state power. An occult forensic trinity, a novel collegium of apex court judges who are senior merely by accident, a robed mystery that is good on the bench but only marginally qualified as a selecting agency, will not fill the bill. For it does not have investigative professionalism; or guidelines as to where to look for information on character, antecedents, bar practice, legal scholarship; or training in professional parameters for judge selection.
What a cult is such a modus? A judge is not a versatile genius. It violates all noesis and commonsense to empower a lay collegium which has no constitutional foundation except a self-serving ruling. The court is under the Constitution and not over it and cannot invent institutions and vest constitutional authority on itself by a means of bench majority.
A bizarre war waged between two great instrumentalities of the republic the executive and the judiciary has plunged the nation into a political power polemic, leading to chaos, pathos and bathos. Imagine a constitutional quandary perplexing relations between the top echelons of the apex judiciary and the tall holders of executive authority. Never in the past anywhere in the democratic world has the high judiciary been empowered to make the final choice of the members of the superior courts, wresting the power completely from the executive. Why this volte-face? What is the rationale for this coup de main against precedents and plain constitutional provisions? What was the provocation to reverse what had worked for so long without scandalising the system?
A specious ratiocination has prevailed with a nine-judge bench which has ruled, based on a paper-thin five-four majority, that the independence of the judiciary is a sacred (superstitious) constitutional principle and that this inviolable doctrine will be breached if the executive wields the power to appoint judges. That is the discovery of the court which held that a collegium of the highest judiciary shall exercise this great power all by itself. Who gave the court this supreme power, almost the highest under the Constitution, especially when the issue had specifically been raised in the Constituent Assembly and Dr. B.R. Ambedkar, the architect of the drafting committee, had categorically clarified that this power would not be parted with in favour of the Chief Justice, who would be consulted but whose concurrence would not be made imperative?
In this background, it may not be unreasonable to contend that the Supreme Court has usurped from the Cabinet what does not belong to it. Is the independence of the judiciary rendered vulnerable by the highest executive becoming the appointing authority? No, perhaps with rare exceptions.
Since the days of Jawaharlal Nehru the appointment of the members of the higher judiciary was invariably done with the knowledge, and largely with the approval of the Chief Justice of India. A certain political element has perhaps infiltrated the selection process which is unfortunate. But to hold that the appointees were chosen mainly out of political or communal considerations or other extraneous factors is an exaggeration and an absurd accusation. Consider the instances of Justice P.V. Rajamannar, Justice M.C. Chagla, Justice Subba Rao Hidayathulla or Justice P.B. Gajendragadkar any number of such instances can be cited. Were not many of them aggressively independent, non-communal, secular, and models of erudition and impartiality?
I myself was once the Home Minister in a government in Kerala run by the Communist Party of India and was chosen for the judgeship by Indira Gandhi, who was the leader of the Congress party which had opposed and manoeuvred to overthrow that government.
History has on record the classic instance of U.S. President Dwight D. Eisenhower, the great leader of the Republican Party, having appointed Earl Warren, who was Governor of California, as a Republican to be the Chief Justice of the Supreme Court. That Chief Justice created history by becoming the most progressive judicial protagonist and Leftist wonder to President Eisenhowers disappointment. Chief Justice Warren was absolutely independent, extraordinarily radical and gloriously advanced in his values. Every judge anywhere in the world must read and re-read this episode relating to Earl Warren.
An anonymous message was sent to him when he assumed charge as Chief Justice in the then prevailing oppressive climate of Joseph McCarthys witch-hunt. It said: Too many timid men have kept silent in the face of roving persecutions by the Senate. I submit it is your duty as a citizen of this country to add your voice of protest against the marauding bands ambushing our freedoms.
Earl Warren, referring to this letter, stated in public what his mission was: Where there is injustice we should correct it, where there is poverty, we should stamp it out, where there is violence, we should punish it and where there is neglect, we should provide care.
British judges by and large have commanded the confidence of the people for their integrity and ability. Has anyone imputed partiality to Lord Atkin, Lord Scarman, or Lord Denning? They won the admiration or jurists in all of the English-speaking world. Chief Justice John Marshall was politically chosen but is regarded as perhaps the greatest Chief Justice of the U.S. President Nixon lost his case at the hands of judges he had himself appointed.
It is outrageous to assume that judicial independence will become a casualty because the Prime Minister has a decisive voice in appointing judges. In my humble view, the ruling in AIR 1965 SC 745 is a grave error with all respect to the great judges in the majority who thought so exultingly about judicial independence. This doctrine of independence as a ground to seize the authority to nominate members for the high bench is but baloney.
The independence of the judiciary is a great guarantee and shall be transcendentally kept beyond the sole power of either the Cabinet or the apex court. So it is imperative that an independent council or commission be created to advise the President on selection and appointment to the high judicial echelons.
Decades ago, a crisis broke out involving the Allahabad High Court and the Uttar Pradesh Assembly, with both institutions issuing warrants of arrest against members of each other. The issue was constitutional. A grave legal disaster could have occurred, but it was avoided.
How was it averted? Legality wins over tension only when humanity springs to heights of vision. At that critical time we had a grand statesman at the top of the executive, Jawaharlal Nehru. He sought an advisory opinion from Justice Gajendragadkar who was at the top of the judiciary (vide Special Reference No.1 of 1964).
The Indian nation has the perennial genius to rise to the occasion whenever it is confronted with a seemingly inscrutable dilemma. India expects its noble holders of high office to rise and resolve every national crisis. Prime Minister Manmohan Singh and Chief Justice K.G. Balakrishnan, you are placed in a historic context. Yes, we can. You are not mere individuals with pomp of office but are symbols of paramount instrumentalities. The problem is not personal but national. Your stature is too high to be a caricature to let the nation down over a power struggle and institutional rivalries. We shall overcome, because India, that is Bharat, is too majestic to surrender before vanities and futilities. Our vision and mission as a nation are supreme.
The Constitution, in the wisdom of its founding fathers, has vested in the President of India the power to appoint judges of the High Courts and the Supreme Court. The President is governed by the long-standing conventions of Westminster vested in the Council of Ministers (vide Shamsher Singh).
I was scandalised by the majority verdict based on the cult of independence. Judges should certainly be free from executive pressure or pleasure, or the temptation to amass a treasure by resort to any social or economic measure to win the goodwill of the proprietariat or the theological high priests. Their social philosophy and economic ideology may sharply vary from the Preamble to the Constitution. Allergy to socialism, affection for communalism, attachment to causes of egalit and democracy and suchlike values vary from judge to judge. But most of them have a class consciousness which unwittingly affects their interpretation of laws and understanding of facts.
Professor J.A.G. Griffith, in his book The Politics of the Judiciary, has argued clearly that independence and impartiality have serious limitations vis-a-vis the higher judiciary. Winston Churchill once said in Parliament: Where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.
Lord Justice Scrutton, in an address delivered to the University of Cambridge Law Society on November 18, 1920, asked: Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? (1 Cambridge Law Journal, Page 8.)
I emphatically plead for an appointments commission that is free from the executive and also the judiciary, although the Chief Justice of India may be formally its chairperson.
In a democracy, even the judiciary must share a people-oriented dimension even at this stage of an appointment. In the U.S., the President nominates the members of the Senate Judiciary Sub-Committee, but it exposes his own nominees to democratic criticism without inhibition, unravelling every angle of a candidates class antecedents, character and other socio-economic factors relevant to his role as a potential judge of the Supreme Court.
In the British jurisdiction, the Lord Chancellor used to choose judges after due enquiry. This gave rise to criticism of partiality and so on, but now a remarkable transformation has come about in the appointment of judges. The Lord Chancellor has virtually withdrawn from the selection process and even from his judicial role. On the contrary, a council has come into existence which takes in a few Law Lords, a few laypersons of outstanding public life and yet others, all of whom make the selecting agency composite and public-spirited, eliminating any controlling voice of the executive and the judiciary.
Judges have large powers and must therefore be accountable as trustees to the people in the discharge of their duties. Even their appointment must have a democratic dimension. It is worth recalling an old Roman adage: Whatever touches us all should be decided by all.
