‘Tyranny of the unelected’, a step towards ‘committed judiciary’?

Independent of the validity of the across-the-board arguments favouring transparency and accountability in judicial appoints all-round, India’s Finance Minister Arun Jaitley might have over-stated his position and that of the government by publicly questioning the ‘tyranny of the unelected’ as ‘flawed’ and against the ‘basic structure’ of the Constitution. Criticisms of the Supreme Court’s recent judgment, striking down the constitutional amendment and relevant laws on the creation of a ‘National Judicial Appointments Commission’ (NJAC), with political representation for the first time, by Jaitley and his ministerial colleagues like Ravishankar Prasad and Law Minister, Sadananda Gowda, smacks of a first step towards a ‘committed judiciary’, of the Indira Gandhi kind, which her Steel Minister Mohan Kumaramangalam had advocated in their time.

Facts may be recalled — Emergency followed, in an environment facilitated by political observations of the Kumaramangalam kind, and supersession in the appointment of the Chief Justice of India (CJI), with A N Ray being named over the head of three of his seniors. It was before the Bench headed by CJI Ray that then Attorney-General, Niren De argued that the citizen did not have right to life when Emergency was in vogue and the Government had suspended his Fundamental Rights guaranteed under the Constitution. The Supreme Court’s verdict, string down the citizen’s right to moving a ‘habeas corpus’ petition in the nation’s High Courts (ADM Jabalpur vs Shukla, 1975-76) is not remembered, even by the legal fraternity that much. The nation still remembers the post-emergency electoral verdict of 1977. The Congress Party, which Prime Minister Indira Gandhi headed, never really and not certainly wholly, recovered from the shock, in moral, political, electoral – hence, physical – terms.

Stoning glass-house

It’s sad that the BJP ministers, otherwise credited with long memories and sharp retorts, have ended up in hyperboles that do not bring relief. They have referred to the US and other western democracies, wherever members of the Judiciary are elected, or face incisive interrogation by legislative panels, and at times, full-house vote, too. They have forgotten to mention that the questioning over there is as much over the political ideology of the candidate, as about his/her personal integrity. Despite the ‘independence’ of the Judiciary and of the legislative processes, both in terms of institutions and individual parliamentarians, the voting is invariably on political lines.

Issues are delayed hearing, wantonly, by either the State or the Bench, owing to the composition of the higher Judiciary (invariably the US Federal Supreme Court). Reams are written in the Press about the socio-political and socio-economic ideologies of individual Judges on the SC Bench at any given point in time – to argue why a particular case would not come up for hearing, or why a particular judgment could go in a particular way.

If nothing else, Indian Judiciary and polity has not reached a stage wherein a healthy discourse could happen on the conduct of either institutions and/or individuals manning them. For that to happen with respect to the nation’s most hallowed of all institutions, the polity and the society have to prove their innocence, not ignorance, before attempting any change of the kind – arrogance is not a virtue for anyone concerned in handling what has already become a hyper-issue.

Independent of whoever is in power, Governments in India would have to look itself up on the mirror before commenting other institutions and individuals. They cannot afford to sit in glass houses and afford to throw stones. The stones, in this case, does not travel long distances, to hit at the target. It brings down the edifice that they are seated in. Definitely, it is not what the likes of Minister Jaitely at least have in mind, just now.

It’s anybody’s guess why the Government of Prime Minister Narendra Modi took up the NJAC law as among the nation’s topmost priorities after coming to power. True, the predecessor Congress Government had talked openly about it for long. Then Union Law Minister M Veerappa Moily even publicly promised to bring up a draft Bill for Parliament’s consideration in the winter session of 2011, only weeks ahead. Maybe because the ‘2-G cases’ sprang to life or otherwise, none from UPA-II found the moral bearing to pilot a Bill of the kind at the time or even later – or, so it seems.

For their part, the Jaitley-Prasad combo and others in the Modi Government should ask themselves why they did not have a candidate for Kerala’s Governor’s post other than the recently retired CJI, in P Sathasivam. It is not to cast any aspersions on the personality or integrity of CJI Sathasivam, but only to question the ‘politically flawed’ nature of his choice, or that of anyone else in his place. It also goes with the choice of Gen V K Singh, the recently-retired Army chief, as a Minister in the Modi Government, or the UPA-II’s Home Secretary, R P Singh, for a BJP nomination for a Lok Sabha seat, which he won.

The less said about the Congress-BJP mutual whip-lash over the political misuse of the CBI, or other Central agencies when in power, the better. After all, T N Chaturvedi, who as the Comptroller and Auditor-General (CAG), who exposed the ‘HBW submarine scam’ involving a predecessor Congress Government, became a BJP member of the Rajya Sabha not long after retirement – and the Governor of Karnataka, when the Vajpayee-led BJP-NDA was in power at the Centre.

It was no way different when the Congress rival was in power. Apart from all the accusations levelled against the party in terms of appointments to other ‘independent institutions’ such as the CAG and CBI (even after the SC verdict and directions in the ‘Vineet Narain case’, including the UPA-II’s last appointment of the CAG, the Congress Government of the day also ensured that Parliament decided the first-ever ‘impeachment’ proceedings against a sitting judge (Justice V Ramaswami), in political, and not legal, judicial or moral terms.

How could then the likes of Minister Jaitley indicate that ‘elected’ representatives of the people are not involved – they are involved in sacking, not appointing a judge? In a way, the ‘appointing authority’ in the President not having the power to sack a Judge, and the ‘sacking authority’ in Parliament doing so without being the appointing authority in the first place, should be against the tenets of constitutional behaviour – and in a way against the ‘basic structure’ of the Constitution.

Corrections within

It is not unlikely that the SC judgment in the ‘NJAC case’ derived not from the speeches made in Parliament or outside, but by the Government’s lawyers and the rest within the court halls. The sketchy newspaper reports at the time and substantial portions of the 4-1 majority verdict are indicative of such thinking. Hence, the solution to the current problem of ensuring transparency in judicial appointments, promotions and transfers could and should also flow from the SC verdict itself.

The fact is that any other harsh observations of the Jaitely-Prasad kind are not going to change the reality. Nor should the BJP continue to be in the ‘Opposition’ political mode even one and half years after coming to power at the Centre, and try to embarrass and ‘fix’ the present-day Opposition, on what essentially remains an ‘academic issue’ – and in the process challenge the authority of the only constitutional institution in the country on which the nation has maximum faith in. It can cut in more ways than one – the BJP and the nation could well be the worse sufferers, and not necessarily in that order.

At least this time round, the BJP /Government leadership should consult the political Opposition in Parliament with sincerity, and not bent on pushing them into a corner or score a debating point, all over again. Reading between the lines, the majority verdict provides enough material for the Government to push through additional reforms to the just struck-down processes. There being clear unanimity among parliamentarians and political parties on holding the Judiciary accountable, and judicial appointments transparent, a solution could still be found within the pages of the majority verdict on the one hand, and the four walls of the Constitution, otherwise.

Filling the vacuum

In its Jan Sangh avtar, the BJP was not known to have questioned the ‘basic structure’ theory enunciated by the Supreme Court in the ‘Keshavananda Bharati case’ (1973), without definition but only through application. On the occasion, the SC held that ‘Judicial Review’ was a ‘basic structure’ of the Constitution. Maybe because it hurt the political ego of the Congress rulers of the day than the non-existent Opposition of the day, the Jan Sangh and the rest of the Opposition did not complain.

There is a larger lesson from political philosophy for the BJP rulers and the nation from the ‘NJAC case’ verdict. Independent of what the SC has ruled and what Government and Parliament intend doing – starting possibly with a ‘review petition’, which again will go to the same Bench — it is but natural in government systems, particularly vibrant democracies like India’s, that one institution fills the vacuum, created in reality or otherwise, by the momentary absence/weakness of one or the other of the rest.

It was thus that when the Executive became weak, or perceived as being weak, and the Legislature was considered a rubber-stamp of the former, the Election Commission (EC) filled the vacuum in the Nineties, and kept the all-round democratic hopes of the people alive. Today, when the Government at the Centre commands an absolute majority in Parliament (and for the first time in 25 years, and thus for a new generation of voters from that era), the SC could be deemed to have stepped in, to fill the vacuum (whatever the occasion and circumstances).

When all institutions failed, as was during the Emergency era, the people filled the vacuum themselves, when it came to their turn, in the 1977 elections. There is a lesson in it, not just for PM Modi, his Government and the BJP, or for the polity alone. There is a lesson in it for everyone else, and every institution, starting with the present-day voter, too!

(The writer is Director, Chennai Chapter of the New Delhi-headquartered multi-disciplinary Indian public-policy think-tank Observer Research Foundation, ORF, This article has been written for India Writes Network)