The Unbalancing Act of Supreme Court

Dinesh Dwivedi

The question is why does one misread or selectively read something? The answer would be that, firstly, they have a preconceived idea or a goal in mind and, secondly, they want to achieve it at any expense.

The Supreme Court has done precisely this and, therefore, it would be important to analyze “why”? The answer lies in critically examining, in depth, some of the salient reasons offered in support of the conclusions arrived at in the Judgment.

The Judges have relied upon the original debates as reflecting the intent of the framers of the constitution. This had to be done because the Court was going against the text of the Constitution. Besides that they have also sought corroboration from the Articles 124 & 217 of the Constitution of India. Exalted phrases like “separation of power”, “balance of power” and “independence of Judiciary” are not to be found in Articles 124, 217 or elsewhere in the Constitution. Article 50 casts a duty on the Executive to take steps to separate the Judiciary from the Executive. However, this obligation is not enforceable under Article 37. This is not to suggest that there is a complete absence of the aforestated ideals but to give a broad idea of the context.

Interestingly, Articles 124 and 217 are differently worded. A reading of Article 124(1) would show that the Chief Justice of India cannot increase the strength of Judges in the Supreme Court. Only the legislature can do it, which would invariably involve the Executive. This is the first indication that framers did not want to cocoon the judiciary from any interference. The provision further indicates the primacy of the Executive through Legislature in fixing the strength of Judges in the Supreme Court. Fixing of strength is the first step in making appointments. It is only after fixation of strength that Article 124(2) provides in clear and categorical terms that every Judge “shall be appointed by the President”. The President impliedly means the President acting on the “aid and advice” of the Cabinet. This is the essence of Parliamentary Democracy based on the Westminster model and this cannot be disputed. The President is a mere figurehead. In other words, Article 124(2) mandates that the President must act with the “aid and advice” of the Government, but only after “consulting” the Judges of the Supreme Court or even the High Court.

The proviso to Article 124 (2) only says that while appointing a Judge, other than the Chief Justice of India, the President must consult the Chief Justice of India. The important aspect to note is that while appointing the Chief Justice of India the President need not consult the existing Chief Justice of India, besides constitution prescribes three categories of consultees, without prescribing which amongst them would have primacy. The text merely states that the President shall appoint after consultation with “such” Judges of the Supreme Court and the High Court “as he may deem necessary”. It clearly spells out that “such” Judges of Supreme Court and of the High Court” are placed at par as the consultees only. Wide discretion is left to the Executive to choose from for consultation. In such a situation, to talk of primacy of the Chief Justice of India as consultee has to be the creation of imagination.
The bare reading of Article 217 further consolidates the above view. There are three consultees indicated after the words “after consultation with”. Therefore, how can the judgment only on the basis of text conclude that one out of many consultees enjoys primacy while others are there for namesake. At least the above text does not say so.

It is for this reason the judgment travels down to the debates to cull out something from somewhere to support the theory of “Primacy of Chief Justice of India”. Before I analyze the reasons spelt out by the Judges from the debates, it is necessary to indicate that the First Judges Case correctly read the text and the context when it held that the consultee Judges only have an important advisory role. This was overruled in the Second Judges Case in 1992 when the Court, by totally misreading the text, concluded that the consultees have a primacy in appointment of Judges while the Executive only has the advisory role. This effectively translated over the years into consultee, in the text, becoming an appointee. The Third Judges Case effectively seals the fate by equating independence of judiciary with the appointments of Judges, thereby making the term “consultation” in Article 124 (2) equal to “aid & advice’’ of the Cabinet to the President under Article 74. They, therefore, asserted that the opinion of the Collegium of Judges is mandatory and binding on the President. The Executive was substituted by Judiciary, in so far as this executive sphere is concerned. Power of appointment of President is an executive power and not judicial or legislative.

The Judges have crucially relied upon two passages from the debates to arrive at certain conclusions:

The debates show that the power of appointment is essentially connected with independence of Judiciary; and
The framers did not trust the executive with absolute say in the appointment of Judges and, therefore, preferred a collective system rather than primacy of Executive.

This to me appears to be a selective reading of the two passages of the debates relied upon. The debate was is the context of Article 124 and 125, where various provisions have been made, like service conditions, termination and fixed age of retirement in order to ensure independence of judiciary. But so far as appointments are concerned there is nothing to show that it has nexus with the independence of Judiciary. The middle path was adopted to ensure that best persons get appointed through consultations with those who can give the best inputs. If both the passages are read carefully, they would yield contrary results. The framers did not trust the Executive with absolute power by not providing that judges may be appointed by President merely on the advice of Council of Ministers. It is correct that they diluted the power by mandating consultation with the Judiciary. Though they distrusted the Executive with absolute power in appointments, they equally distrusted the Chief Justice of India. The passages clearly indicate that the framers gave the Judiciary an advisory role only. This highlights the scope of the word “consultation” used in Art. 124. Coupled with this, one has to realize that despite distrust of Executive they were clear that appointments are to be made by the President who is the head of the Executive and acts on the mandatory advice of the Cabinet. These are the key factors to be kept in mind. The substitution of word “concurrence” as suggested, in place of “consultation” was rejected.

I do not find answers to the following questions in the judgment:-

(1) Why would the framers, distrusting Executive with absolute power of appointment, equally distrust the Judiciary on this issue?; and
(2) Why would the framers decline to substitute “concurrence” for “consultation” in Article 124 and proceed to confer power to appoint judges on the Executive?

These questions remain unanswered even though they are pivotal. Both the above premises of the Judges are incorrect and are not justified, either on the basis of the text or the context. The word “consultation” only gives an advisory role to the Chief Justice of India to assist the Executive in the formation of opinions. There is no scope for erecting any kind of primacy of the Judiciary in the matter of appointment.

There is another distressing factor in the judgment. What began as a tussle for primacy has ended up as claim for absolute power. The judgment equates the word “consultation” in Article 124(2) to “aid and advice in Article 74”. In other words, the President is now said to be bound by the advice given by the judiciary. This really makes a mockery of the observation of the framers that the Chief Justice of India also cannot be trusted with the absolute power.

Paragraphs 428 and 482 of the Second Judges Case clearly indicate the constitutional objective of a non-political character of the judiciary. If read with paragraphs 430, 435, 438, 441 and 450 the judgment in the Second Judges Case, only brought home the fact that the Executive that was to discharge this obligation failed to do so and, therefore, in this context they reconsidered the issue of primacy of the Chief Justice of India in the matter of appointment of judges. The emphasis was on who is best equipped to assess the capability of the appointee. The Second Judges Case, so far as the majority judgment is concerned, did not link appointment to independence of judiciary but linked the question of primacy of the Chief Justice of India to the effective discharge of the constitutional commitment of establishing a non-potential complexion of the judiciary. I think the judges have overlooked this factor.

From the reading of the debates it becomes clear that the framers steered away from vesting absolute power on either the Executive or the Judiciary. They opted for a more balanced approach. The framers did not think in terms of “primacy” as it has the potential to acquire an absolute flavour. This is what we are seeing from the advent of the Second Judges Case.

To talk of “primacy” would be to negate blatantly, the lack of trust on either of the organs of state, which the framers had. In fact, the balanced approach adopted by the framers did not visualize a dispute between the two organs. It visualized amicable solutions. However, they did provide for resolution of disputes in case of irreconcilable differences, by clearly stating that the “President shall appoint”. This gave enough indications as to where “primacy” lay.

It is this primacy which is being taken away contrary to the intent of the framers. If framers had wanted primacy to reside in any one authority then they would have said so clearly. It is clear that they were rooting for a balanced approach and a consultative process where both the organs would have an important say. They ascribed to the principle of mutuality and not bulldozing of one point of view by the other. They opted for a balanced and not tilted scale. The courts have now created in themselves “an imperium in imperio”.

We, therefore, come back to the question which I had raised at the beginning. Now the judgments from the Second Judges Case onwards clearly show that the judges are still reeling under the spectre of supersessions and transfers in the 1970’s. It is apparent that the Judiciary wants to firewall itself, forgetting that the essence of the Constitution is not in its being but in its becoming.

(Dinesh Dwivedi is senior advocate, Supreme Court of India)