After a very long time, there has been a serious discussion on the Constitution, the Supreme Court, the appointment of judges, and on the judiciary itself. It has been a long time coming.
On Thursday, the Union law minister Kapil Sibal moved the 120th Constitution Amendment Bill in the Rajya Sabha which would insert “judicial commission” in Article 124 that deals with the appointment of judges. Article 124 says that the President shall appoint judges in consultation with the Chief Justice of India.
It was no doubt a motivated debate. It appeared the politicians were waiting to get back at the courts and at the judges for the rough treatment they were subjected to, in the last few years and particularly in the last few weeks.
The Supreme Court said that politicians in prison were not eligible to contest elections, and that politicians convicted of crimes were to be disqualified immediately without waiting for the time provided for appeal. The court had also ruled that political parties come under the ambit of the Right To Information.
Rajya Sabha members and the government turned the tables on the judges. Sibal raised the important question that the Supreme Court has constructed a mechanism for the appointment of judges which wasn’t in the Constitution. Over the years, the Chief Justice of India had consulted two other senior judges and recommended the names to the president.
The number of judges consulted for considering the appointment of judges to the Supreme Court increased to five, and in the high courts it was the chief justice and three other judges who would choose the new appointees. This was the informal collegium which chose the new judges.
It was the Bharatiya Janata Party (BJP) which first mooted the idea of a judicial commission for the appointment of judges to the high courts and to the Supreme Court. Sibal generously acknowledged that he has borrowed the idea from the BJP.
The Communist Party of India-Marxist (CPI-M), the Communist Party of India (CPI), the Bahujan Samaj Party (BSP), the Samajwadi Party (SP), the All India Anna Dravida Munnetra Kazhagam (AIADMK) have all agreed that judges cannot have their way in deciding who will be a judge at what level of the judiciary.
What seems to irritate the politicians and the political parties is this relative autonomy and freedom that judges seem to enjoy, and that these judges take a harsh view of politicians. The politicians have to fight for their legitimacy at every point and even getting elected is no guarantee that victory is permanent because a defeat in the next election reduces them to a cipher.
The only way to have some sort of control over the judges is for the executive and the legislature to have a say in the appointment of judges. But they have, however, to find some legitimate theory to cover up their simple desire to dominate.
To be fair to the politicians, whatever their motives, there is some justification that judges cannot be a law unto themselves, and they should be made dependant in some way to the other two branches, the executive and the legislature.
How is one to interpret the theory of the separation of powers, whereby the legislature, the executive and the judiciary are independent of each other? In this system, the special privilege of the courts is judicial review, where the highest court can call into question the laws passed by parliament and the decisions taken by the executive.
The Congress party has always been contemptuous of judicial review because it believes that the popular mandate of an elected parliament is superior to the opinion of the unelected Supreme Court.
The BJP and other political parties too believe in this though they are afraid to say so openly. The non-Congress parties also believe in the false pious idea that the judiciary should be free of political interference. The Americans know, and Indira Gandhi knew, that this is humbug.
That famous president of liberal America, Franklin Delano Roosevelt, packed the Supreme Court with his nominees when the court in the 1930s threw out all the New Deal legislation to fight the Great Depression.
Indira Gandhi’s supersession of judges in the 1970s was comparable to that of Roosevelt’s move, and she had her justification. The court was turning down her ‘socialist’ legislation. She had to overcome that.
What is to be recognised is that the judiciary cannot be insulated from politics. Republican presidents send Republican judges to the US Supreme Court, and the Democrat presidents Democrats.
Indian politicians have to come to terms, and the judges too, that they all have their political world views and they cannot keep them at home while dealing with constitutional questions.