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Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that appointments are fair and transparent.

Two days after the Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution.

Questions on judicial review

The reaction of the executive to the NJAC verdict raises the fundamental question,

“Should the exercise of power of judicial review depend upon the will of the Parliament?”

Indian Constitution, unlike the Constitutions of USA and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear.

While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary.

The power to strike down offending amendments to the Constitution on the touchstone of basic structure can be exercised by the superior judiciary alone, uninfluenced by the will of the Parliament.

Our Constitution has given the power of judicial review to the unelected superior judiciary to declare ‘unconstitutional’ a legislative act, once it is found to be violative of the basic structure.

What remains of democracy if there is no rule of law?

The institutional arrangement at the heart of our democracy provides that the will of the people, as reflected in the decisions their elected representatives, is subject to the will of the Constitution, as reflected in the decisions of an independent judiciary.

Parliamentary supremacy refers to the power of Parliament to make laws within the limits imposed by the Constitution.

It also denotes the supremacy of Parliament over the executive, primarily through the accountability of the Council of Ministers to Parliament.

All the three organs of the state derive the power and jurisdiction from our Constitution. Each must operate within the sphere allotted to it.

Judicial function is also a very important sovereign function of the state and provides the foundation for rule of law.

Is it good that judges appoints Judges in India?

It is not wholly correct to say that judges appoint judges in India as consultative participation of the executive is present in the institutionalised procedure prescribed after the Third Judges case.

But assuming it to be so, ours is perhaps the only country where the government is the biggest litigant before the courts, Isn’t it?

Why is this so?

We are one of the very few countries where actions of the political executive in diverse fields, ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications, are brought before the superior judiciary in the public interest litigation (PIL) .

Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters?

It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.

Veto to non-judicial members

In the Second Judges case, the nine-judge Bench exposited that appointment of judges to High Courts and the Supreme Court forms an integral part of the basic structure of our Constitution.

Therefore, the executive cannot interfere with the primacy of judiciary in the matter of appointments.

The NJAC’s flawed composition consisted of the fact that it merged certain components, reflected in the inclusion of Law Minister and two eminent persons and giving any two members the power to veto the decision of the other four.

This directly affected the independence of judiciary in the judicial appointments process.

Way Forward to Fair and Transparent system

Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.

The judges who delivered the judgment in the NJAC case also hold the view that an improvement in the working of the collegium system is the need of the hour.

Demands of the Constitution can override the wishes of the people expressed through elected governments.

These are at the very core of a democratic commitment to judicial independence and constitutional supremacy.

In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.”

Published with inputs from Arun