Article 368 vests the constituent power in Parliament to amend the Constitution by way of addition, variation or repeal of any of its provisions, notwithstanding anything in the Constitution. However, the proviso to Article 368 stipulates that the Bill once passed by Parliament for amending, inter alia, Chapter IV, which pertains to appointment of Judges in Supreme Court and Chapter V, which pertains to appointment of Judges in High Courts, and the provisions of Article 368 itself, has to be ratified by not less than one-half of the State Legislatures. The power under Article 368 is therefore limited only by the collective wisdom of Parliament, combined with one-half of the State legislatures in certain cases.
Thus while the Indian Constitution is the supreme law of the land Parliament is sovereign, as it can amend and abrogate any of its provisions. However, in Keshavananda Bharati case (1973), by a thin majority of 7 to 6 Judges, the Supreme Court ruled that any law or amendment made by Parliament, in exercise of its constituent power under Article 368, which changes the ‘basic structure’ is void. As per this ruling the ‘basic structure’ includes the supremacy of the Constitution, unity and sovereignty of India, democratic and republican form of government, federal and secular character of the Constitution, separation of powers, individual freedom and independence of judiciary. But the Constitution does not visualize any such thing. It, therefore, amounts to legislation.
The judiciary is not competent to make law, except what Lord Denning had famously said: it can only ‘iron out the creases’. The doctrine of separation of powers as between the legislature, the executive and the judiciary also connotes it.
The ‘basic structure’ doctrine suggests that the Supreme Court treats Parliament with distrust and suspicion, like a big brother, by circumscribing its lawmaking power. This goes against the grain of a democratic republic. Abraham Lincoln pithily said, “Democracy is the government of the people, for the people, by the people.” Moreover, the Constitution is not a dogma: it is a living organ evolving with the passage of time.
Under Article 124(2), as it originally stood, every Judge of the Supreme Court was to be appointed by the President after consultation with the Chief Justice of India (CJI) and such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary for the purpose. Analogous provisions were made in Articles 216 and 217, for appointment of a Chief Justice (CJ) and such other judges of a High Court.
To obviate this constitutional mandate in Third Judges Case (1998) the Supreme Court finally ruled that appointment of judges can be done by the President only on recommendation of a collegium consisting of the CJI and four senior most judges of the Supreme Court and if among the four senior most judges none is to succeed as CJI, then the judge who is to succeed the CJI shall also be included in the collegium. This put in place a curious mechanism for appointing judges compared with the one envisaged under Articles 124 and 217. It is, however, difficult to understand how the Supreme Court could interpret the words, “after consultation with such of the Judges of the Supreme Court and of the High Courts” occurring in Article 124(2) as implying “upon recommendation of a collegium of CJI and four senior-most Judges of the Supreme Court”.
Retired Supreme Court Justice Ruma Pal, observed that the collegium system has bred sycophancy and lobbying within the system and it operates on ‘You scratch my back, I scratch yours.”
In this backdrop, to bring in transparency and objectivity in appointment of Judges, in exercise of its constituent power under Article 368 by the 99th Amendment to the Constitution Parliament, inter alia, inserted Article 124-A providing for creation of a National Judicial Appointments Commission (NJAC). This amendment was subsequently ratified by 16 State Legislatures out of 29 states, which was more than half the State Legislatures as required by the proviso to Article 368. Thereafter, the President gave assent to the bill and it came into force from 13th April 2015.
Article 124-A provides that the NJAC would consist of the CJI, as ex-officio Chairman, two other Senior Judges of the Supreme Court, next to CJI, Union Law Minister, and two eminent persons to be nominated by the Committee consisting of the Prime Minister, the CJI, the Leader of Opposition in the Lok Sabha. Clause (a) of Article 124-B provides that the NJAC would recommend persons for appointment as CJI, Judges of the Supreme Court, CJ and other Judges of the High Courts. Clause (b) empowers the NJAC to recommend transfer of CJs and other Judges of High Courts from one High Court to another High Court.
NJAC is intended to be a high powered body of various constitutional stake holders. It ensures the primacy of the CJI as its ex-officio Chairman, which is further boosted up by existence of two other senior most Judges of the Supreme Court. The Law Minister of India is the only government representative. One has to trust in the sagacity and rationality of the three-member committee to nominate the two eminent persons.
However, in Supreme Court Advocates-on-Record Association case (2015), a Five-Judge Constitution Bench by a majority of 4 to 1 struck down the amendment by its judgment dated October 16, 2015 declaring the NJAC as unconstitutional for being violative of the independence of the judiciary which is a constituent part of the ‘basic structure’ of the Constitution. Thus the Constitution (Ninety-ninth Amendment) Act 2014 was made nugatory although the articles inserted by it still continue.
This raises two vital questions. Whether the Supreme Court can curtail the constituent power of Parliament under Article 368? Whether the collective wisdom of the Lok Sabha, currently comprising its 543 Hon’ble Members, elected by the people, and the Rajya Sabha, comprising its 245 Hon’ble Members, indirectly elected by the people, combined with that of a large number of legislators of 16 State Legislatures, elected by the people, who had ratified the 2014 amendment, be given a go-by for the collective wisdom of a few judges of the Supreme Court? Inevitably, the answers to both these questions should be negative.
Walter Bagehot said in his, “The English Constitution”, that a working constitution has two discernible parts—the dignified parts and the efficient parts. In conformity with Bagehot, the President of India, as the Head of the State, is the ‘fountain of honour’ and belongs to the dignified parts. So does the Parliament. The ‘Treasury’ as the spring of business belongs to the efficient parts. The dignified parts evoke respect from the people and attract motive power. The Prime Minister, though belongs to the efficient parts, as the Head of the Government, also belongs to the dignified parts. Similarly, because of their conspicuous dignity the Supreme Court and the High Courts and the Judges also belong to the dignified parts. Noblesse oblige, privilege entails responsibility. Nowhere in the world judges appoint judges. They should work together for upholding constitutional morality. Harking back to the sage advice of Justice K.K. Mathew: “When procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its own notion of justice. When the legislature has spoken, the judge cannot afford to be wiser.”
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