A serious debate is now raging about the supremacy of the Indian parliament and whether the decision of the constitutional bench of the Supreme Court on the National Judicial Appointments Commission (NJAC) usurps the powers of the Indian parliament. The present finance minister Arun Jaitley, a child of the 1977 emergency has dumped the judgement to be tyranny of the unelected. He holds that if the elected are undermined, democracy itself would be in danger. Another child of emergency the former law minister of the country and present Telecom Minister Ravi Shanker Prasad claimed the Supreme Court judgement is against the sovereignty of the Indian parliament. It is extremely surprising that these children of emergency are speaking in the language of Indira Gandhi.
The arguments of the central government led by the attorney general over the primacy of the parliament and his belligerent stand on the NJAC are actually reminiscent of the emergency era. In the early seventies, Indira Gandhi realized the need to tame the Supreme Court judges. She felt Supreme Court would come in her way of implementing her ‘Garibi Hatao’ slogan in the 1971 general elections and after her party returned with a massive majority of 352 of the 518, she thought the will of the people could be used to restore the supremacy of the Indian Parliament, which she believed was derailed by the Supreme Court.
Somehow the utterances of Arun Jaitley and Ravi Shanker Prasad remind us of the role played by H.R. Gokhale (then law minister), Mohan Kumaramangalam and Sidharth Shanker Ray in what was referred to as the ‘packing the court’. At the root of the problem was the 352/518 seats of Indira Gandhi and the present 282/545 (NDA 336) seats of Narendra Modi. They believed that majorities can manipulate everything.
Make no mistake about it. The will of the majority must be subject to the spirit of the Constitution. Majority cannot decide what is right or wrong. That must be left to law and the court.
We have always upheld the independence of the judiciary – the central pillar of our society. There can be no argument over a fact that a few in the Indian judicial system has let the institution down. These few have also entered the system through what is now called the collegium system (judges appointing judges) a system invented by the Supreme Court and championed by one of our finest judges Justice J.S. Verma who later in life accepted deficiencies of that system. The collegium system loaded the judicial component against the political executive. That system was accepted by the society in 1993 when the other pillars of the society went into a state of disrepair. There can be hardly any doubt that the collegium system is non-transparent and though brought about independence from executive had its own failings leading to the rot. There was a consensus that the collegium system must go and a new scheme must be in place.
There is a need of finding a right balance of judicial and political executive components in constituting the appointments commission. The then UPA government brought a judicial appointments commission which had a general acceptance in the society and legal fraternity but the bad handling of UPA floor managers put that scheme into cold storage but the single party majority of the present NDA government led to the loss of balance in favour of the political executive. The present government attempted to dilute the judicial component in the appointments commission through the two ‘eminent persons’ whose eminence was not defined. A close scrutiny of the NJAC debate would show that the focus was never not on the appointment of judges but on the ‘eminent persons’. It is in that context that it was felt that the government could manipulate the system of adjudication in the country. If the collegium system was seen as disease afflicting the higher judiciary, the NJAC brought by the present government was a remedy worse than the disease.
It is said that the ‘father’ built various institutions which the ‘daughter’ attempted to dismantle and one of the institutions which the daughter attempted to tinker with is the institution of the judiciary. Her hurry to bring about social justice through land reforms, nationalization laws, etc., Indira Gandhi saw the courts and in particular the Supreme Court to be a hurdle in her path of social justice. Indira Gandhi could be acquitted of the charge of ‘packing of court’ as she was in a hurry to implement her ‘Garibi Hatao’ promise. Crawling by the ‘the packed court’ when asked to bend during emergency is unpardonable.
The NJAC judgement comes at a time when our society’s tolerance level is at all time low. The central government is bent on enforcing its writ on all. We are under a system where there is an atmosphere of fear with freedom of speech under threat. Every form of dissent is being hounded upon. The union culture minister has recently told us of his plan to revamp 39 institutions including the Lalit Kala Academy and the Nehru Memorial Museum and library. The literary and history scholars are pushed to the corner with autonomous institutions like ICHR, CBSE getting saffronized and the government is seeking to control various independent accountability institutions, the NJAC judgement has actually brought a sigh of relief. Ram Jethmalani has correctly summed up “ I think it is a great success for Indian Democracy; the litigating public; the bar and all those who respect honest judges and a clean judicial system.”.
(The writer is practicing advocate, senior faculty in law and political analyst)
