The Indian legal system is among the oldest in the world with its law & jurisprudence dating back to centuries, forming a living tradition which has evolved with the lives of its diverse people. India’s commitment to law is manifested in the Constitution which constituted India as a sovereign democratic republic with a well-defined division of power between the legislature, the executive and the judiciary, three pillars of democracy. The Constitution prevents encroachment of power by any of these organs. However, it makes the judiciary a trustee of democracy and fundamental rights of the people. An independent judiciary with power of ‘judicial review’ (not ‘judicial supremacy’) is an important feature of the Indian Constitution that empowers it to review the actions of the legislature & executive to determine whether such actions are consistent with the Constitution.
Two days after India became the Republic, the Supreme Court of India came into being with seven Judges, the number gradually increased to 34 (currently 27 in place). It started functioning in the Chambers of Princes in the Parliament House where the Federal Court had been holding its hearing for 12 years since 1937. The Supreme Court had moved to its existing building in 1958 which is designed to project the image of scales of justice-the Central Wing of the building is the Centre Beam of the Scales with the East Wing and the West Wing, assuring fair justice to all.
Despite a well-defined division of power, tension, albeit, conflict, between the Supreme Court and the Executive exists. Many feel that the current confrontation is developing into a serious situation, but the fact is that it is not new.
It is interesting to go into the debates in the Constituent Assembly on the independence of judiciary. On July 29, 1947, the Constitution framers were faced with the question of who should have power to remove judges which had bearing on independence of judiciary. The views of Krishnaswami Ayyar prevailed to vest power in Parliament through impeachment for proved misconduct of the judge. Gopalaswami Ayyangar, member of the Drafting Committee, however, hoped that “this power will not be used within his life time”. But he proved wrong, as, much before adoption of the Constitution, Allahabad HC Judge Justice Shiv Prasad Sinha was removed in July 1948 at the demand of the United Provinces Government under Section 220(2) of the Government of India Act, 1935. However, the first move under the Constitution was made in 1970 to remove Justice J C Shah which was rejected by the Lok Sabha Speaker under the Judges (Inquiry) Act, 1968.
The first two decades witnessed Govt asserting its supremacy over the Judiciary. In 1950 itself, the SC struck down Section 14 the Preventive Detention Act. 1950 which prevented the courts from assessing material forming the basis of the detention orders of Communist leader A K Gopalan. But the Govt amended the Act to detain him.
The period of 1965 to 1993 witnessed a full-blown clash between the Executive and the Judiciary. The Supreme Court’s first assertion of its authority came with striking down the Constitution (Seventeenth Amendment) Act 1964 that gave immunity from judicial review to the Punjab Security and Land Tenures Act by placing it in the Ninth Schedule of the Constitution. Then came the famous Golaknath case where the constitutional bench restrained the Parliament to curtail fundamental rights. Indira Gandhi was disappointed but waited for an appropriate time to deal with the judicial setbacks. It came in 1971. Riding high on a massive victory over Pakistan in the 1971 war, Indira got a huge majority in elections and she decided to deal with judicial setbacks. The Govt asserted through the Constitution (Twenty-fourth Amendment) Bill, 1971 that aimed at providing power to the Parliament to amend any provision of the Constitution. Powers of Parliament to amend the Constitution again reached the Top Court in a case famously known as Kesavananda Bharati case. Since the 24th Constitution Amendment had annulled the force of the Golaknath verdict by an 11-judge bench, the challenge to this legislation was heard by a 13-judge bench headed by Chief Justice S M Sikri. The Govt acted quickly to appoint judges in the Supreme Court to suit its political commitments to fill the vacancies to hear this case.
The Apex Court, in its judgment of April 1973, while upholding Parliament’s power to amend the Constitution, put fetters on the power of the Parliament to amend its “basic structure”. Considering it as a setback, the Govt hit back by appointing Justice A N Ray as the Chief Justice of India, superseding three senior judges — Justices J M Shelat, AN Grover and K S Hegde. This confrontation worsened when Allahabad HC judge, Justice Jagmohan Lal Sinha, set aside Indira Gandhi’s election to the Lok Sabha from Rae Bareli while deciding Raj Narain’s election petition on June 12, 1975. Indira reacted by imposing an emergency of June 25, 1975.
In another case, popularly known as ADM Jabalpur Case, the Supreme Court upheld Govt’s unrestricted powers during Emergency. While Justices A N Ray, P N Bhagwati, Y V Chandrachud and M H Beg upheld the Emergency, the lone dissenter, Justice K R Khanna, was superseded for the post of Chief Justice in 1976. This was the third time in the history of the Supreme Court when the senior most judge was superseded for the post of CJI. In February 1964 Justice Gajendragadkar superseded Justice Imam (seriously unwell) and in April 1973 Justice A N Ray superseded three judges (Shelat, Hegde and Grover JJ) following judgment in Kesavananda Bharati case. It is claimed that on the demise of the first CJI Justice Harilal Kania in 1951, the ‘rumored supersession’ move was ‘dropped’ when all the judges had reportedly threatened to resign. It is customary to appoint the senior most judge as CJI on the recommendation of the outgoing incumbent.
Even the Janata Party Govt faced the ire of the Supreme Court in the Maneka Gandhi case in 1978. The administration had impounded her passport “in public interest”, but the Apex Court declared that traveling abroad was part of the right of personal liberty guaranteed by Article 21 and the Govt cannot arbitrarily impound the passport which is violative of right to equality under Article 14.
Then Law Minister P Shiv Shankar’s March 1981 circular on the Executive’s discretion to transfer judges “to further national integration and to combat narrow parochial tendencies” was challenged. Adjudicating petitions on it in December 1981, Justice P N Bhagwati declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused on “cogent reasons”. This bolstered the Executive in judicial appointments for over a decade till the primacy of the CJI was maintained for the time being.
The period from 1993 to 2018 saw the assertion of Judiciary with ‘weak’ coalition Govts at the Centre. Amidst increasing charges of arbitrariness in judicial appointments, the VP Singh Govt came up with the Bill in 1990 for constituting the National Judicial Commission for Appointments. However, it lapsed with the dissolution of the Lok Sabha in 1991.
In 1993, the Supreme Court wrested control of appointments through its judgment in a case popularly known as the Second Judges Case that crafted a completely new process of judicial appointments, that is the beginning of collegium system. Since the judgment did not spell out the modalities of the “consultation” as mandated by the Constitution, the President made a reference to it in 1998. In its advisory opinion (Third Judges Case), the Top Court set the modality of the ‘consultative process’, where the CJI would consult his four senior-most colleagues for Supreme Court appointments and his two senior-most colleagues for High Court appointments, thus paving the way for the present collegium system.
With the collegium system ‘freeing’ the Judiciary from the Executive’s interference, political authorities started looking for constitutional provision to ensure ‘judicial accountability’. While Vajpayee’s NDA regime came up with a National Judicial Commission for judicial appointments, Manmohan Singh’s UPA too moved the Judicial Standards and Accountability Bill for a new mechanism. But both failed to get enacted.
But Modi Govt succeeded and provided the National Judicial Appointments Commission (NJAC) scrapping the collegium system. In 2015, the Supreme Court, however, struck down the NJAC as unconstitutional, paving way for the latest round of confrontation. It spoke about a Memorandum of Procedure (MoP). While the dialogue for it began after the judgment, consensus evaded even after seven years and the MoP remained unsigned. The Centre sat on many recommendations of the Collegium forcing the Supreme Court bench in a judgment in 2021 to fix a timeline of 18 weeks for processing the Collegium’s recommendations and returning these to the Supreme Court but it was not adhered to by the Executive.
Meanwhile, the Law Minister Kiren Rijiju launched a campaign to target the collegium system, after about 30 years of its existence, highlighting its opaqueness and related avoidable issues. One of the highest constitutional authorities, the Vice President of India who is also the Presiding Officer of the Rajya Sabha, Jagdeep Dhankhar added to the armory of Rijiju, using strong words to openly challenged the Supreme Court’s authority to strike down the NJAC by using power of judicial review with Speaker of Lok Sabha Om Birla advising the judiciary to respect the principle of separation and balance of power as mandated by the Constitution. Inaugurating 83rd All India Presiding Officers’ Conference at Jaipur, Dhankhar, who himself was Supreme Court Advocate, said, “Parliamentary sovereignty cannot be permitted to be diluted or compromised by the Executive or the Judiciary”.
Fifty years after Kesavananda Bharati judgment that established the principle of inviolability of “basic structure” of the Constitution, the Vice President chose to contest this doctrine, saying that “in a democracy, the basis of any ‘Basic Structure’ has to be the supremacy of the mandate of the people. Thus, the primacy and sovereignty of Parliament and legislature is inviolable.” Claiming that it is not a challenge to the judiciary, Dhankhar said that the power of the Parliament to amend the constitution cannot be dependent on any other institution.
His strong statement, second since he became the Vice President, doesn’t sound ‘climbdown’ of Govt ‘s on issues with the Top Court as was felt when the AG recently assured Justice Sanjay Koul headed SC Bench to “adhere to the timelines fixed by the Court to process recommendations” for High Court Judges.
The SC is rightly displeased at these public statements against it by the constitutional authorities. One of its Benches advised the AG to counsel the authorities to exercise restraint but on the contrary the Vice President chose to decline publicly, saying that he cannot be a “party to emasculate power of legislature”. Fortifying his arguments, he quoted Ambedkar to say that the Constitution doesn’t envisage ‘a third and superior chamber’s” approval to the legislations passed by the Parliament.
The Judiciary feels that the Govt is miffed at striking down NJAC and delaying appointments but repeatedly asserted that the Collegium system is now “law of the land”. Why did Modi Govt accept the judgement on NJAC and why didn’t it come up with another Constitution Amendment Bill. Contesting the doctrine of “basic structure” after 50 years and the Collegium system after thirty years will prolong Govt-Judiciary confrontation with none willing to blink. Is it one-upmanship? The Govt is trying to create a narrative before a fresh constitutional attempt is made to ‘clip the wings’ of the Judiciary. The conflict continues with no end visible which doesn’t augur well for the country.
The author is a retired IAS officer, a political analyst and a social worker. He can be reached at [email protected]