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February 09, 2016

Milords - Bravo! Remembering The Immortal Machiavelli


Ashok kapur

One recalls Machiavelli in the context of Supreme Court's latest judgement holding that the law on the National Judicial Appointments Commission is ultra vires the Constitution

A fierce debate was raging in the UK in the 16th century about teaching Machiavelli in the schools of Political Science. It was felt that unscrupulous and venal conduct of the average politician was a direct result of such an amoral, if not immoral philosopher included in the syllabus. The issue was referred to Bacon, the great law giver. He clinched the debate: "He teaches not what the politicians should do but what they actually do. Hence Machiavelli".

One recalls him in the context of our Supreme Court's latest judgement holding that the law on the National Judicial Appointments Commission is ultra vires the Constitution. The proposed Commission had sought to give equal representation to the Executive along with the Judiciary in the appointment of members of the higher judiciary. The sum and substance of the reasoning given by the Court is that it would have compromised the independence of the judiciary.

One had hoped that the ghost of Executive - Judiciary face-off had been buried finally with the celebrated judgement of the apex court in the Keshwananda Bharati case way back in 1973. After all, it was delivered by the largest ever bench of the Court which sat for the longest period - six months. Not so. This time, the Executive is straining every nerve to get back into the process of selection of judges. To what purpose, is not clear.

The reaction of the ruling Executive to the well-reasoned judgement has resurrected the controversy more than four decades later. The judgement has revalidated the existing Collegium system whereby the senior members of the Apex Court, headed by the Chief Justice will continue to appoint judges of the Supreme Court and the High Courts. The Executive will have no say in the matter, as before.

The NJAC Act had earlier been passed by Parliament unanimously, and ratified by the legislatures of more than 20 states. The NJAC had been pushed by the Executive as it was constantly lamenting that it had no say in the appointment of senior judges - that the Collegium system had created a monopoly in favour of the judges. It was felt that the Executive had been ousted by the Judiciary from the process - it must have a "say" in the matter.

The ruling has raised the hackles of some members of the ruling party. It has been alleged that the ruling is an attack on the 'sovereignty' of Parliament. Second, that it is a negation of the "will of the people". Third, it is a misinterpretation of the original scheme of the Constitution whereby the Executive had the final word. Fourth, that it would lead to the tyranny of the unelected Judges. Fifth, instead of the original mandated process of "consultation", the Court had read into it as "concurrence".

The controversy first arose in 1993 because of the ruling by the Apex Court where, admittedly, the original provision - "consultation" had been read down as "concurrence". As a result, since the Executive ceased to have a role, it alleged that the Judiciary was operating a system that was opaque. It had resulted in a number of deserving judges being denied promotion. In no other democracy, it was further argued, do 'judges appoint judges'.

The root cause of the present face-off cannot be understood unless one examines the history of constitutional rule in India since the time of promulgation of the Constitution in 1950. The period since can be divided into two phases - from 1950 to 1973, and then from 1973 onwards. In the first phase, the Constitution as it was first enacted stood its form and the Judiciary interpreted it literally, the way it was meant to be worked, by and large.

What the judgement seeks to do is merely keep political interference at bay so as to ensure complete independence of judiciary

A sea change took place in 1973 when the ruling party with an overwhelming majority proclaimed the concept of 'absolute sovereignty' of Parliament. In Constitutional terms, it implied that it could do anything with the Constitution - even tamper with Fundamental Rights. The judiciary was asked to harmonise the Constitution as the Parliament willed it, and not as it should be in a functioning federal democracy under the rule of law.

Such 'absolutism', if that is the right word was bound to be resisted by an independent judiciary. It rose magnificently to the occasion, and rightly trashed the sinister dictum. It ruled categorically that not the Parliament, not the Executive, not even the Judiciary enjoys "absolute sovereignty". Only the Constitution is supreme, and the three coordinate organs of the modern state have limited sovereignty in their respective fields. The concept of "absolute sovereignty" appeared to have been buried once and for all.

The apex court went on to further enunciate the concept of the 'basic structure' of the Constitution, and outlined several features which were declared immutable. Two of the main features are relevant in context - 'independence of the judiciary' and the 'separation of powers'. The first one, almost a cliché, now necessarily implied that the Constitution would thereafter be interpreted in a manner that was in complete consonance with the total independence of the judiciary.

The second concept, once examined closely, was actually aligned to the first. It implied that just as the Executive should not encroach on the turf of the Judiciary, the members of the Judiciary should similarly not be lured into executive positions. Indeed, it can be argued that these twin concepts were two sides of the same commemorative coin. And this coin is the precious currency of India's liberal democracy today, minted in the Apex Court.

Coming to the composition of the aborted NJAC, it was to be a six-member body comprising the Chief Justice of the Supreme Court, two senior-most judges, the Union Law Minister and two "eminent persons". The eminent persons were to be nominated by a committee comprising the Prime Minister, the leader of the Opposition and the Chief Justice. Veto power could be exercised by any two members, including "eminent" members to torpedo appointment of an 'inconvenient' judge. Of course, "eminence" was not defined - indeed, it cannot be defined in law.

On paper, the NJAC looked respectable, with equal representation of the Judiciary and the Executive. It is here that one must pause and examine the evolution of the concept of democracy in the historical perspective, and the actual working of the world's oldest Constitutional democracy - America. It holds crucial lessons for India's democracy. And the profound wisdom of our Supreme Court's latest ruling.

One of the greatest judges of the US Supreme Court, Justice Oliver Holmes at the beginning of the last century identified the underpinning of rule of law - the "life of law is not logic but experience". Justice Louis Brandies, another great jurist shared the same views with his contemporary brother Justice Holmes. It has been said by modern jurists that the duo have been largely responsible for the growth and development of contemporary America's liberal democracy for more than a century now.

Independent India's Constitution was largely fashioned on the federal structure of the American Constitution. Pt. Nehru, one of the main architects of the Indian Constitution stated as much in the Constituent Assembly. He acknowledged how our Constitution had borrowed from the liberal traditions of U.S. Constitution, half a century after the Holmes-Brandies philosophy in action.

A shrill charge has been made against the judgement that a certain "politician bashing" is discernible in the attitude of some judges. The charge is vague, and without any basis. What the judgement seeks to do is merely keep political interference at bay so as to ensure complete independence of judiciary, an immutable feature of our Constitution in terms of the 'basic structure' doctrine. The Parliament cannot pass a law in breach of the same, even unanimously.

Judging, so to say, on the said touchstone of "experience", the working of the political executive in India especially since 1973, leaves much to be desired. An independent judiciary is an anathema to all the political parties. They would love to plant a pliant judiciary, given half a chance. It has happened with the previous political dispensation as also with the present one, basic structure or no basic structure.

"A judge can be more easily bribed by ambition than by money", said another great American judge. A retiring Chief Justice of India was given an executive appointment by the earlier political dispensation in the 1970s. Again, in a similar brazen violation of the 'basic structure', a retiring Chief Justice has recently been appointed a Governor by the present dispensation. On the touchstone of Indian "experience", all political parties are equally guilty of diluting judicial independence.

Undeniably, the retiring Chief Justice ought to have politely declined the succulent carrot dangled by the ruling party. But the Executive must share the major blame. The judiciary, basically, has to be independent of the Executive, the largest litigant in the country. Having successfully tempted the senior-most Judge in the country, the possibility, nay the probability of similar inducements to the judicial members of the NJAC could not have been ruled out in advance.

The argument that in no other democracy do judges appoint judges, has no validity. Our Constitution is 'sui generis' in the sense that it is the most comprehensive in the world. There is no other democracy where the concept of a 'committed judiciary' has been floated by the Executive. The traditions in the other long-established democracies are so entrenched that the executive dare not tinker with democratic norms.

Remarkably, the commitment of the political class to democratic values is as strong among the elected representatives as the judiciary, if not stronger. To cite an example from the world's oldest democracy, the US Supreme Court had, during the eighties legitimised the system of summons and searches by the police in the premises of newspapers, in certain circumstances, without a court order. Believe it or not, the elected Senate overturned the ruling.

There is another risk in constituting a forum where senior members of the Judiciary regularly interact with members of the ruling Executive. It provides an avoidable opportunity to sitting Judges to meet up with the Law Minister and other nominees of the political executive. Familiarity breeds attempts to cozy up to ruling politicians - the possibility of a 'give and take' arrangement cannot be ruled out. It may promote a class of political judges.

Justice Krishna Iyer, one of the greatest jurists of independent India had warned that it tends to divide the Judiciary along political lines. "There are those who know the law very well, and others who know the Law Minister very well." Independence, by definition alone means a certain aloofness on the part of members of the Higher Judiciary. A similar philosophy pervades the working of the judiciary in the oldest federal democracy - America: "A certain aloofness is indispensible to the effective discharge of the Supreme Court's functions", said another great Chief Justice of the US Supreme Court.

The greatest potential to harm lies in the Executive injecting the poison of caste and sub castes in judicial appointments too. Fortunately, the Indian judiciary is, so far, free of this caste and community divisions, and merit is the sole criterion of appointments. Once the political executive intrudes the process, the first casualty will be merit. Justice will cease to be blind, with one eye on the caste or community of the litigant.

On the touchstone of India's "experience" again, all political parties are equally complicit in the swelling tumour of caste-based reservations. When the apex court was considering the question of entry quotas based on caste considerations, the then Attorney General was specifically asked if the quota system would not be extended to promotions. He expressly assured the 9-member Bench that thereafter, a level playing field would be ensured to all entrants.

Promptly thereafter, the ruling party introduced a Bill in the Parliament to inject the cancer of quota in promotions too. A solemn public assurance to the highest court was trashed in so brazen a manner! In the annals of democratic governance, such conduct cannot be termed mere contempt of court which is punishable under law. It can only be termed as utter contempt of court, for which a new penalty will have to be devised. "This way lies not only folly but disaster", Pt. Nehru had warned.

The apprehension that the country may slip into a tyranny of the unelected is perhaps unjustified. Of the three coordinate organs of the state, the judiciary is the least 'powerful'. The Executive is the most powerful as it is also the coercive arm of the state. The armed services of the state, including the police are under the control of the executive, not the judiciary. Under the existing law, the armed forces can be summoned by the executive not judicial magistrates.

In sum, the creative interpretation given by the Supreme Court is in complete consonance with the basic structure of the Constitution. The judgement can only strengthen the rule of law. Arguably, the last word on the functioning of a federal democracy was given by another great Chief Justice of the American Supreme Court, Earl Warren: "The interpretative responsibilities of the Court amounted to (Constitutional) duties."

 

Disclaimer - The views expressed in this article are the personal views of the authors and are purely informative in nature.

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