Supreme Court Advocates-on-Record Association v. Union of India
and Others (JT 2015 (10) SC 1)is the instant case by which the question of
parliamentary Act in amending the constitution under Article 368 and further
enacting the National Judicial Appointments Commission Act,2014 were
challenged. Even when the parliament passed these Acts to rectify the errors of
the previous judgments by the Supreme Court in judges-2 & 3 cases, the
Supreme Court judged these Acts again under the shadow of those judgements.
Once the parliament has done away with the said judges-2 and 3 judgments, the
very reliance upon the said judgments to vitiate the parliamentary Acts is
ultra vires the Supreme Court. Once the people of India has spoken through it's
elected representatives, the lawmaking by the Supreme Court by it's judgments
shall come to an end and is constitutionally bound to accept the law of the
land. But, unfortunately, the Supreme Court elected in it's judgment to protect
it's unbridled powers by relying upon the amendment made by it's own judgment
under Article 32 of the Constitution, and vitiating the amendment made by the
parliament in it's constituent powers.
The incidents that led to such a pathetic situation is discussed in
detail infra.
The Supreme Court was amending the Constitution and enacting
laws in the name of interpretation vide a series of jargons used to shift the
meaning of the literature used in the Constitution to reach a predetermined
destination of amending it. This is evident from the sequence of jargon used in
the Summary of Conclusion of Judges-2 case.
80. A brief
general summary of the conclusions stated earlier in detail is given for convenience,
as under :
(1) The
process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory
consultative process' for selecting the
best and most suitable persons available for appointment; and all the constitutional functionaries must
perform this duty collectively with a
view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primary does
not arise.
(2)
Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India,
and in the case of a High Court by the
Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the
proposal had to be initiated by the
Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the
High Courts as well as for the transfers
of Judges/Chief Justices of the High Courts must invariably be made.
(3) In the
event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by
the view of the Chief Justice of India
and formed in the manner indicated, has primacy.
(4) No
appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with
the opinion of the Chief Justice of
India.
(5) In
exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating
that the recommendee is not suitable for
appointment, that appointment recommended by the Chief Justice of India may not be made. However, if
the stated reasons are not accepted by
the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter,
on reiteration of the recommendation by
the Chief Justice of India, the appointment should be made as a healthy convention.
(6)
Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court
considered fit to hold the office.
(7) The
opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of
High Court judges/Chief Justices.
(8) Consent
of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one
High Court to another.
(9) Any
transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such
transfer is not justiciable on any
ground.
(10) In
making all appointments and transfers, the norms indicated must be followed. However, the same do not confer
any justiciable right in any one.
(11) Only
limited judicial review on the grounds specified earlier is available in matters of appointments and
transfers.
(12) The
initial appointment of Judge can be made to a High Court other than that for which the proposal was
initiated.
(13) Fixation
of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated.
(14) The
majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: AIR 1982 SC 149, in so far as it takes
the contrary view relating to primacy of
the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of
these matters as well as in relation to
Judge-strength, does not commend itself to us as being the correct
view. The relevant provisions of the
Constitution, including the constitutional
scheme must now be construed, understood and implemented in the manner indicated herein by us.
Para 1)
uses “participatory consultative process”
Para 2) “Proposal”
Para 3) “Primacy”
Para 4) “Opinion”
Para 5) “recommended” and “Consulted”
Para 6) “Determinative”
Para 7) “Consent”
Para 8) “Not justiciable”
Para 9) “Must be followed”
Para 10) “Do not confer any justiciable right in any
one”
Para 14) “constitutional scheme must now be construed, understood and
implemented in the manner indicated
herein by us”.
The slow poisoning of mind by gradual and continuous moulding of
language and terminologies can be understood by the following comparative data:
Original as per constitution of India
|
As moulded by Judiciary(J-2&3
cases)
|
As it reached today by Judges-5
judgment
|
Even travelled to
|
Separation of powers
|
Independence of judiciary
|
Supremacy of judiciary
|
Exclusiveness
|
Consultation
|
Concurrence(Used the terminology “effective
consultation” in Judges-1 case)
|
Primacy
|
Binding
|
Executive
|
Politicians
|
||
Citizens of Nation
|
Common people
|
Immature civil society
|
|
Constitutional Function
|
Power of appointment
|
Political Interference
|
|
Constitutional Trust
|
Collusion of Persons
|
Political conspiracy
|
|
Democracy
|
Vote bank politics
|
Mobocracy
|
The concepts of
Separation of powers, Independence of
Judiciary & Supremacy of Judiciary are
invariably used in the same context, changing the basic concepts. Nani
Palkhivala said the reality as follows:- “ It is the Constitution which is
supreme. It is the eternal human freedoms which are supreme. It is the people
who are supreme and it is they who have given the Constitution unto
themselves.” [1]
The following chart can throw some light in to the present
shifting of this concept by judiciary:
Sl.No.
|
Separation of powers
|
Independence of Judiciary
|
Supremacy of Judiciary
|
1.
|
Article 50 of Constitution,
reiterated in Keshavananda Bharati.
|
Established vide Judges-2&3 case.
|
Trying to establish vide Judges-5
case.
|
2.
|
Is a basic structure.
|
Is against the Basic structure.
|
It is antithesis to democracy. It
destroys the basic structure of parliamentary democracy and separation of
powers.
|
3.
|
Cannot encroach in to each other.
|
Judiciary can encroach into executive
and parliamentary functions.
|
Judiciary becomes the supreme Power
and the Authority of the Nation, even above the people of the nation.
|
4.
|
Founded upon constitutional supremacy
|
Judiciary usurps above constitution
also, to rewrite it.
|
Constitutional Supremacy is
destroyed.
|
5.
|
Each organ accountable to other
organs.
|
All others are accountable to
judiciary, and Judiciary is not accountable to anybody
|
Judiciary is the only power centre.
No accountability required. Judiciary assumes the sovereign power.
|
6.
|
Respects the federal structure.
|
The judiciary consolidates the state
powers and can destroy federal structure as well.
|
Assumes supreme dictatorship. Even
the High Court becomes the subordinates of Supreme Court.
|
7.
|
As per constitution
|
A misnomer as far as constitution is
concerned
|
Death of democracy
|
8.
|
Powers within the ambit of public
criticism.
|
Powers goes beyond the ambit of
public criticism. The Contempt Of Court Act, hangs as a Damocles sword
against any criticism, even is founded upon truth.
|
Absolute destruction of democracy and
freedom of speech, which are Fundamental Rights and involved in the Basic
Structure.
|
9.
|
Continuous existence of opposition
and criticism as a deterrent to misuse of powers by executive.
|
Non existence of opposition. Public Criticism is silenced through
contempt of Court Act.
|
No opposition at all. The
Alternative/Counter visions are termed as the destructors of Judiciary and
Nation.
|
10.
|
Founded on mutual respect of each
organ and constitutional trust.
|
All other organs are duty bound to
have trust and respect judiciary, but judiciary need not to have trust and
respect to other organs.
|
Judiciary is the only authority, as
it is supreme. No question of constitutional trust arises and needed.
|
11.
|
All powers are distributed among
three organs.
|
Judicial powers become superior to
other organs.
|
All powers are consolidated into
judiciary. It is against the doctrine of separation of powers, which is a
basic structure of the Constitution.
|
It’s a systematic use/shifting of jargon to effectively causing
amendment to the written constitution under the guise of interpretation which
transgressed to the realm of construction and travelled far ahead to the
territory of causing amendment, causing destruction to the foundation of
separation of power which is a basic structure of the Constitution. It is well
said that:- “A lie doesn’t become a truth, wrong doesn’t become right and evil
doesn’t become good just because it is accepted by majority or judicial body.” The judges-2,&3 judgments are
unconstitutional, being rendered in violation of the doctrine of basic
structure of the Constitution of India as laid down in Kesavananda Bharati v.
the State of Kerala (1973) Supp. SCR 1; as well as in Minerva Mills v. Union of
India (1980) 2 SCC 591; as the
separation of power is the one basic structure, the democracy is the basic
structure, and as the said judgments cumulatively violates Article 368 and the
principles laid down by this Hon’ble Court in the said judgments of Doctrine of
Basic Structure, making the judiciary, not accountable to the democratic
process, and the appointments are in practice being shared closed doors,
between and among the stake holders, who has rendered the power of ‘settings’
and ‘adjustments’ leaving the entire nation into the backburner, where as such
appointments are not the judicial affair, but a national affair. In judges-2 & 3 cases, those who were the
product of executive appointments declare that the said form of appointments as
unconstitutional! What an irony! The best way for them would have been to put
in their papers and say that the system through which they were appointed were
wrong! It could have been the moral courage! Even when enjoying the benefit of
a given system, the beneficiaries declared that the given system is illegal,
without any rhyme or reasoning. They continued to be the beneficiaries of the
said quoted ‘deficient’ system of appointments!
The concept of revisiting the appointment process was discussed
thread bare for last two decades or so, which emerged many studies and reports.
Some of the recommendations for the appointments are as given below:-
Recommendatory
Body
|
Suggested
composition
|
2nd Administrative Reforms Commission
(2007)
|
Judiciary :
CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
Executive : Vice-President
(Chairperson), PM, Law Minister, [For HC judges: Includes CM of the state]
Legislature: Speaker of Lok Sabha,
Leaders of Opposition from both Houses of Parliament.
Other: No representative.
|
National
Advisory Council (2005)
|
Judiciary:
CJI; [For HC judges: Chief Justice of the relevant High Court of that state]
Executive: Vice-President (Chairman), PM
(or nominee), Law Minister, [For HC judges: Includes CM of the state]
Legislature: Speaker of Lok Sabha, Leader
of Opposition from both Houses of Parliament.
Other: No representative.
|
NCRWC
(2002)
|
Judiciary :CJI
(Chairman), two senior most SC judges
Executive: Union Law Minister
Legislature: No representative
Other: one eminent person
|
Law
Commission (1987)
|
Judiciary :
CJI (Chairman), three senior most SC judges, immediate predecessor of the
CJI, three senior most CJs of HCs, [For HC judges: Chief Justice of the
relevant High Court of that state]
Executive: Law Minister, Attorney
General of India, [For HC judges: Includes CM of the state]
Legislature: No representative
Other: One Law academic
|
Almost all the modern democracies across the world have accepted
the concept of appointment to the higher judiciary by the executive, which are
answerable to the people at large through democratic process. Some examples are
as given below:-
Country
|
Method of
Appointment to the highest court
|
Who is
involved in making the appointments
|
UK
|
SC judges are
appointed by a five-person selection commission.
|
It consists of the
SC President, his deputy, and one member each appointed by the JACs of
England, Scotland and Northern Ireland. (The JACs comprise lay persons,
members of the judiciary and the Bar and make appointments of judges of lower
courts.)
|
South Africa
|
Permanent judges in
the higher courts are appointed by the President of South Africa, in
consultation with the Judicial Service Commission as well as the leaders of
the political parties represented in South African National Assembly.
|
The Judicial
Service Commission (JSC) is composed of 25 members. This membership is
divided more or less evenly between the judges, politicians and
non-politicians.
|
Australia
|
Appointed by the
Governor General on the recommendations of Attorney General.
|
The
Attorney-General consults widely with interested bodies seeking nominations
of suitable candidates. In addition to those bodies outlined earlier, the
Attorney-General also writes to: • State Attorneys-General • Chief Justice of
the High Court • Justices of the High Court • State and Territory Chief
Justices. After considering the Advisory Panel’s report, The Attorney-General
considers the field of highly suitable candidates and writes to the Prime
Minister seeking his and/or Cabinet approval. If approved by the Cabinet, the
Attorney-General makes a recommendation to the Governor-General who considers
the appointment through the Federal Executive Council process.
|
Canada
|
Appointments are
made by the Governor in Council.
|
A selection panel
comprising five MPs (from the government and the opposition) reviews list of
nominees and submits 3 names to the Prime Minister.
|
USA
|
Appointments are
made by the President.
|
Supreme Court
Justices are nominated by the President and confirmed by the United States
Senate.
|
Germany
|
Appointments are
made by election.
|
Half the members of
the Federal Constitutional Court are elected by the executive and half by the
legislature.
|
France
|
Appointments are
made by the President.
|
President receives
proposals for appointments from Conseil Superieur de la Magistrature.
|
All these nations work with their own independent judiciary and all
the appointments are done by the political authorities/executive. None of those
judiciary laments that their independence is lost, just because the
appointments are regulated by the executive or the political authority. But, in India, as Nani Palkhivala said,”
outraging the sanctity of the Constitution, however shamelessly, is not a
punishable crime.”
