POST RETIREMENT APPOINTMENTS OF JUDGES IN INDIA

Independence of any office is it's functional independence. The independence of judiciary is preserved when the judiciary is free to decide the lis before it without any extraneous pressures or considerations. And such independence starts at the starting point of taking oath of office. What happens to the person before appointment is not a consideration.

The essential feature of human life is that it's forward looking. Nobody drives a vehicle looking into the rear view mirror. The life is essentially forward looking. The rear view mirror is only an indicator and the vehicle cannot be driven by looking only to it. Once a person is appointed and takes oath of office and secrecy, his functional independence starts from that point of time. If executive sends any direction to decide a case or litigation in any particular manner, it is essentially an interference with judicial process. But appointment to the judiciary is essentially an executive action, to which judiciary shall desist from interfering. If it interferes, unduly, then it is judicial interference with executive action, against the doctrine of separation of power, As per the doctrine of separation of powers, the executive powers vests with the political executive, the law making powers with the parliament and the adjudicative powers with the judiciary. If executive enters in the judicial authority, it will be against the said doctrine. It will result into the consolidation of powers with the executive. But, if the judiciary encroaches into the powers of executive, what will be the result? The result is the same: Consolidation of powers. Only the banner differs. One is under the banner of executive and the other under the banner of judiciary. But in either case, the powers will be consolidated with a group of people, under either of the banner. If the judiciary encroaches into the lawmaking powers of parliament, then also amounts to the same result. As the separation of power is the basic structure of the constitution, as laid down by Keshavananda Bararti case, the encroachment of judiciary into either executive powers or to the parliamentary powers of law making or constituent powers, it will be destroying the basic structure of the constitution. SO the very effect and consequence of either judiciary encroaching into executive or parliamentary powers or executive encroaching into the judicial functions are one and the same, being consolidation of powers with one organ, which is antithesis to separation of powers.

Now, coming back into the effect of appointing authority upon independence of functioning, if the judiciary says, just because it's is appointed by the executive, it lost all its functional independence, then it is akin to personal surrender. The pay, perks, allowances, tenure and all the conditions of service are protected with respect to a judge of higher judiciary to effectively protect the functional independence. That is the same case with respect to Chief Election Commission, Comptroller and Auditor General and Union Public Service Commission as well. Even president is protected so far his/her functional independence is concerned. Except president of India, all the other constitutional authorities mentioned supra are appointed by the executive. Even the judges, before 1993 were appointed by the executive under consultation with CJI and other such judges, as the executive may deem fit. Taking into consideration, the functional independence of all these constitutional organs, the executive being their appointing authority was never a hindrance for them to be functionally independent.

Even though J.V.R.Krishna Iyer was appointed by Mrs.Indira Gandhi Government, as Supreme Court judge, he did not found it inappropriate to refuse an unconditional stay in her favour. So was the case of Allahabad High Court judge, J. Jagmohanlal Sinha.  So, the executive appointment of a judge in a higher judiciary is not a reason for him to lose functional independence. But, the reality is otherwise. As we discussed above, the essential nature of human being is forward looking and not rear view mirror looking. So the very essence of independence of a person depends upon his present and future and not on his past. Hence the present of a judge, president, CAG, CEC and UPSC member are protected by way of fixed terms coupled with protection of service conditions. The appointments of CAG, UPSC, Election Commission, CVC and other constitutional Authorities are made by President of India in accordance of article 74. Then where is the doubt in case of Judicial Appointments?  All are equal in status with the Supreme Court in Independence, Status  and Function. [1]

But in case of CAG and CEC, the future is also protected from being lured by the executive. That gives them real teeth to act independently and impartially, especially while dealing with political executive. There is a cooling period of 6 years for the CEC and CAG to take any Government appointments, post-retirement. That prevents an individual holding such a high constitutional post from being lured by a post retirement appointment by executive. As of now, immediately after the retirement, some judges are appointed by the executive to some pre reserved designations or to some instantly created commissions. It remains to be the luring of the sitting judges, to use his present appointment and powers to secure future office of profit. When the executive is the major litigant, and most of the political authorities have their personal litigation also running in courts, this is an easy task for the incumbent judges.   

 Such a cooling period for the judges of higher judiciary is also essential for protecting their functional independence while in office, so that such judges will not be intimidated by post retirement appointment by executive to protect their personal interest. It will give the much needed cooling time for a judge to become a true statesman and time to read and understand the higher levels of statesmanship, before being assigned with any other responsibility. Hence to protect the independence of judiciary at it's functional level, instead of agitating at the way of appointments, the core subject of protection from post retirement appointments shall be addressed meaningfully. At least a cooling period of 6 years must be there before any such appointments, if any is accomplished. The present temptation of securing a post retirement appointment through corrupt practices, while in office and protect such corruption through the post retirement offices will be effectively checked. It will further curb the political nexus of judiciary. 

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[1] Article 148(1)  (Comptroller and Auditor General of India) To be removed as per the procedure for the removal of the Supreme Court of India.

Article 316(1)  (Public Service Commission).  Removal and suspension in accordance with Article 317 of the COI.

324 (2) (Election Commission) Chief Election Commissioner to be removed as per the procedure for the removal of the  Judge of Supreme Court of India.

POLITICS IN INDIA AND JUDICIAL EXPRESSIONS

The word “politics” has been brought into limelight once again with the NJAC Act,2014. There are some other common parlances as being repeatedly used in conjunction with the issue. “Independence of Judiciary” is another one, as such being, “compromised”, “transparency of appointments” and “accountability” are to name a few.       

The words ‘polity’ or ‘politics’ are being considered as something of bad omen by media, as well as the corporate  world. In recent times some obiter dicta of judicial expressions also has endorsed such a view point. The very corner stone of our constitutional democracy is founded upon polity. If political process does not exist, the democracy itself does not exist. It is through the political process, the authorities, let it be legislature, executive or the judiciary are made responsible to the people of India, the sovereign power, from whom these so called power centers draw their power and authority. Hence none of these organs are empowered to denounce and demean its own parenthood. The word polity in all practical and theoretical purposes are the extension and foundation of democratic process. Democracy cannot exist, without political process. Both the politics and democracy are the inseparable ingredients of same coin. Hence every effort to denounce the political process or political authority is to denounce the democratic process itself. Such a process if denounced will ultimately end up in consolidating the power and authority with some group of people, who may form as the oligarchs.

The terminology ‘political’ or ‘politics’ is not confined to the party politics itself. As we discussed, the party politics is the essence of democratic process. But that does not means, politics means only party politics. Even in a family there may be internal politics to secure wealth, fame, name, inheritance, relations, authority, power etc. So that too is a matter of politics. So wherever such issues are in conflict, there is a complex matrix of political game. Everybody will be accusing other of playing politics, even though they all together are party to the ongoing political game. It do not have any colour of flag or symbolic representation. Still the politics will be intense to secure the so called benefits.

 As far as the nation is concerned, the struggle to secure power is a political one, even when it does not have any party colours. In some countries, when the military assumes political power, it is also politics. The reason being the essence of controlling the executive powers of the nation is the national politics. In a functional democracy, that is exercised through the party politics. But, in other form of governance, the national politics may not be in the form of party politics. In Myanmar, the military ‘Junta’ was controlling the executive powers of the nation. So such exercise of executive powers are part and parcel of national politics. Even though the said exercise of executive powers are done by the military authority, they are the political leadership of nation, as what they are exercising is political power itself. If a monarch rules the nation, what he assumes and exercise is the political power of the nation. The very essence of nationhood or statehood and it's existence is political. Hence the map which shows the boundaries of nation/state is known as political map. So, the executive powers, whoever is exercising is playing the national politics, even if it is done under the colours of military, political parties, judiciary, judges, oligarchs, monarchs or any other formations, in whatever name it is called.

The basic structure of our constitution is democratic and even the parliament is not authorised to amend such democratic authority, and least the Supreme Court of India under the guise of interpreting the constitution, and hence the supreme court is ultra vires in amending the constitution! That too making the entire judiciary, not answerable to people of India, who are the sovereign power in all means.  Any amendment made to the Constitution of India by the Supreme Court is null void ab-initio.

The selection, recommendation, appointments, transfers and promotions of the judges of higher judiciary is essentially the executive functions. Hence, irrespective of who exercises it, the function or power exercised is the executive powers of the nation, which even though is vested with the union government by virtue of Article 53, of the constitution, now assumed by judiciary by it's own pronouncement of judgments in it's own favour, encroaching into the powers, which it has no role to play, whatever is exercised is political power and the functions political in nature essentially.

To decide the nature of function, who exercises it is of no relevance. What is relevant is the nature of function exercised itself. Based upon the nature of function, it shall be decided, whether it is political or judicial.

 So, when the political executive exercises the executive powers, it is a misnomer to describe it as political interference. It is only an exercise of political powers by the union executive. When the judiciary tries to assume the said powers either through the collegium or the route of PIL, it is to be termed as judicial interference with the executive and political powers. So, in the name of judicial independence and judicial supremacy, what is achieved is the exercise of political powers by the judiciary itself, which is judicial interference into the executive powers, and later even to the constituent powers of Parliament as well. The only difference is that it is not registered as a political party or is not allotted with a political symbol or flag. Even when the judiciary is not a part of party politics, when it encroaches into and exercises the executive powers, what it is playing is national politics itself, controlling the money, wealth, authority, power, resources, and so on. It is pure politics, nothing but the politics. Even though judicial supremacy is established by it's further judgments, nullifying the constitutional supremacy, by causing executive amendments in the name of interpretation, it will be the politics of the nation, nothing else. Even when the executive functions powers of the nation is vested with the president of India, under Article 53 of the constitution, which he shall exercise in accordance with the aid and advise of the council of ministers, under Article 74 of the constitution , the judgments in judges 2,3&5 cases goes against these articles and hence per incurium. The result is the judicial over reach in to the political powers and eventual creation of oligarchy. Now a super cabinet, called collegium is exercising he said executive and political powers, by virtue of these judgments, which eventually encroached into such executive powers with respect to judicial appointments and transfers. 

The said judgments failed to take into consideration, what is laid down by 13 judge bench of the supreme court in Keshavananda Bharati case, which is known as doctrine of basic structure. 

The intention can clearly  be drawn from the observation in the Judges-2 Case by the Supreme Court:

"Solmon's throne was supported by lions on both sides; let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty."

83. In terms of the above Biblical apologue in the old Testament as coined by Francis Bacon in his 'Essay of Judicature', the vital questions which are of great constitutional significance affecting the Indian Judicial system that are posed for deep consideration can be figuratively formulated thus:

(1) Whether the present day 'Solomon's throne (symbolizing the majestyof our justice system) is fully supported by the 'Lion's (symbolizing the legislature and executive) on both sides?

(2) Weather the 'Lions' are still under the 'throne'?

(3) Whether, the 'Lions' are circumspected from checking or opposing any of the points of sovereignty of the judiciary (i.e. judicial sovereignty)?

(4) Whether it is for the 'Lions' to pronounce the name of 'Solomon' and his successor to occupy the throne?

(5) Whether 'Solomon' has any right of proposing any celebrated structural reform to his 'House' (symbolizing the judicial structure) or is it for the 'Lions' to make such proposal to 'Solomon's House' without reference to Solonon?

(6) Is it for the 'Lions' to make any alteration to the structure of the

Imperial State of 'Solomon's House' and propose sweeping reforms

whether Constitution and composition of a 'Kingdom of Solomon' - even without reference to Solomon or even inexcusably ignoring any suggestion of Solomon?

(7) Whether under the present scheme and procedure proscribed and followed, 'Solomon' is made to sit on the chair of handicapped sub-silentio instead of his own 'throne'?"

So are we travelling 3000 years back in our mode of Governance or growing further in modern civilisation and vibrant democracy? 

COLLEGIUM IN INDIA :- UNDERSTANDING THE PROBLEM

There was an old story, which we learned in our childhood. Once a noble person was gifted with a dog in the name of sheep. After performing his duties, he carried the dog on his shoulders, thinking that it is a sheep. Enroute to his residence on a bridge, some people, his critics, met him and asked, why he, being a saint and noble man is carrying a dog? Then he realised that, he is carrying a dog inadvertently. He dropped the dog on the shores of the bridge and left to his residence. After a month or so, the same critics jeered him, tauntingly asking, “ Why were you carrying the dog on that day!?”

The noble man answered:-

“I had dropped and left that dog then and there itself. But why are you still carrying it in your mind?”

 So, it is not always physical burden, which makes us really burdensome. When we carry some past memories and it's burden makes us to think and act in a prejudicial manner, then it is the greatest burden to our personality. This is almost true our experience with the judicial appointments as well. It is true that, during emergency, then Union executive tried to interfere with judicial appointments. Constitution (42^nd amendment) Act was intended for such efforts. Even the judiciary did not stand with the people for protecting their Fundamental Rights. But, people of India protected the judiciary and their own Fundamental Rights as well through the ballot and polling booth to elect a new parliament, so that the wrong interferences were corrected, and moved forward. People of India were wise enough to drop the pretended ‘dog’ there itself and move forward in the collective interest of the nation. But it is sad and disgusting that the judiciary is still carrying that interference and continuing to function under deficit of constitutional trust. Even after almost four decades, that conjectural ‘dog’ is still being carried psychologically and functionally. It a horrifying experience that the three and half decade prior dropped issued is still haunting a primary institution of the democratic nation. It's surprising really that judiciary, not only carried it forward on it's shoulders, from where people dropped it four decades ago and even enlarged and amplified it. During emergency it all started with the judiciary VS. Executive logger heads. Then During the Judges-1 case, it was further enlarged to judiciary Vs. Constitution. In judges 2 & 3 cases, it was further enlarged and amplified as judiciary Vs. Parliamentary democracy. In judges-4 and 5 judgments it further got enlarged and amplified into the loggerheads of judiciary Vs. The People of India. It is feared that, if this can grow into a stage of judiciary Vs. Nation? Is it called judicial independence? Time will only be able to tell us. Or is it what J.Krishna Iyer lamented as “Judicial Terrorism”? Otherwise, how can judicial independence and National independence can co-exist? How can judicial Supremacy and Constitutional Supremacy co-exist? How can there be an ‘imperio in imperium’?  There cannot have one sovereign under another sovereign.  If so, either of one is not in reality but only hypothetical and utopian.

ERA	CONCEPTUAL CHANGE
Pre-Emergency	Constitutional Trust based upon the people’s Constitution and democratically elected government.
Emergency	Judiciary Vs.	Executive
Judges-1 Case	Judiciary Vs.	Constitution
Judges 2&3 Cases	Judiciary Vs.	The Parliament
Judges-4&5 Cases	Judiciary Vs.	The People of the nation

In effect, by judges-2,3&5 judgments, the Supreme Court of India was negating Article 74(1) & 75(3) of the Constitution. 

When the appointments and the transfers of the judicial mechanism is decided by The President of India, he is doing as the head of the executive, under the aid and advise of his council of ministers.  The parliament consists of  three organs as per Article 79 of the Constitution of India and the Supreme Court of India is not the organ of Parliament and not vested with the authority to amend the constitution in whatever manner may be and in this instant case entered in the realm which runs even beyond the scope of Parliament’s Authority to amend the Basic Structure as per the Judgment of the Supreme Court of India itself in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461..  

The judiciary is the organ which is entrusted with the greater function of interpretation of law and not in any way shall enter into the realm of making the law. The Parliament is known in the common parlance as the law makers of the Nation and the Judiciary as the Law interpreters. In no circumstance, whatever compelling may be, the law interpreter shall enter into the territory of the law maker. The system of appointment and transfer of judges is bound to follow the spirit of Article 74 of Constitution of India, by which (s)he is functioning under the advice of Council of Ministers.

Article 74 of the Constitution of India Reads as:

“74. 2[(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:]

3[Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

The council of Ministers is Jointly responsible to the House of People (LokSabha) vide Article 75 of The Constitution of India.  The said Article reads as follows:

“75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

1[(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People.

(1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.]

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.

(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule.”

The president of India is supposed to and duty bound to function in accordance with the aid and advice of the democratically elected council of ministers.   Council of Ministers is answerable to the people, ‘We the People’ of India through democratic process. Democracy being a basic structure of the Constitution, the said process cannot be amended by the Supreme Court also. In case the advice by the Council of Ministers and the consultative opinion of the CJI are divergent, the president is duty bound to act according to which one? The literal interpretation is as clear as day light:

Aid and Advise of the Council of Ministers	Consultation with the CJI
Democratically elected body.	Not so, but appointed body.
Answerable to Parliament of India, inter alia to the People at large.	Not answerable to anybody.
Aid and advise binding [Explicitly provided under Proviso to Article 74(1)].	Consultation only, not binding  (Literal interpretation) . Only an Expert Opinion. Not binding, but aiding to come to a conclusion.
The aid and advice are unique and sui generis. Only one body to aid and advise and that is binding.	The consultation process is wide and the consultation with the CJI is one among many other consultations as provided by the Constitution. The president is free to make his mind, if the opinions rendered are diverse.
There is only one body giving aid and advise and hence there is no possibility of diversity of opinions.	If one consulted demands primacy in decision making, it is pre-empting the other consultation process and their opinions. This includes the opinions of the other judges of Supreme Court and High Courts.
SCI shall give effect to both the provisions
The president of India is duty bound to  function in accordance to the aid and advise of the Council of Ministers. All Advises are binding, if reiterated by the Council of Ministers.	Nothing is binding. Even the Presidential reference, under article 143 of the Constitution, the SCI decision is not binding on the president. Even the judgment of death sentence of SCI is not binding on the President of India.  Then how can an administrative consultation be binding on the President of India? The Constitution is clear and there is no room for ambiguity.
Governance of Nation includes, appointments also, top to Bottom.

                            

The following ratios made by the SCI will make it more understandable:

Sl.No.	Titles	Citation	Ratio Decidenti	Remarks
i	Shamsher Singh v. State of Punjab***	(1974) 2 SCC 831	the President has to act on the aid and advice of the Council of Ministers as prescribed in Article 74 of the Constitution. The Supreme Court held that the President acts on the aid and advice of the Council of Ministers with the Prime Minister as the head in all matters which vests in the executive whether those functions are executive or legislative in character. It was further observed in the said decision that the President does not exercise the executive functions personally.	As pointed out by Justice Krishna Iyer, speaking for himself and Bhagwati, J., in a concurring opinion in Shamsher's case, the justification for vesting of such powers in the Council of Ministers is that the Council of Ministers is responsible to Parliament. under the Cabinet system of Government, as embodied in our Constitution, the Governor is the formal Head of the State. He exercises all his powers and functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers. That, the real executive power is vested in the Council of Ministers of the Cabinet.(Quoted in  Page 61, of  CVC Case)
ii		:	it was a fundamental principle of the constitutional scheme that every organ of the State, every authority under the Constitution, derived its power from the Constitution and had to act within the limits of such powers.
iii	R.K. Jain v. Union of India	(1993) 4 SCC 119	We reiterate that Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/ legality of its decisions when impugned under the judicial review jurisdiction. We do not wish to multiply the authorities on this point.	That, the real executive power is vested in the Council of Ministers of the Cabinet.

***”It is a fundamental principle of English Constitutional law that there must be no conflict between the King and his people, and consequently no conflict between the King and the, House of Commons which represents the people. It is this principle which is responsible for three settled rules of English Constitutional Law :

That for every public act of the King, his Ministers must accept responsibility,

That the Sovereign must never act on his own responsibility that is, he must always have advisers who will bear responsibility for his acts; and

The Power of the Sovereign to differ from or dismiss his Ministers is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action and those advisers must have the confidence of the house of Commons.

This rule of English Constitutional Law is incorporated in the Constitution of India. See Articles 74(1), 75(3) and 361(1) and second proviso which clearly point to the conclusion that the Indian Constitution envisages a Parliamentary or "responsible" form of Government and not a Presidential form of Government. The powers of the, Governor as constitutional head are no different-See Article 163(1), 164(2) and 361(1) and second proviso. The Supreme Court of India has consistently taken the view that the powers of the President and the powers of the Governor under the Indian Constitution are akin to the powers of the Crown under the British Parliamentary system. See Ramajawari Kapur v. State of Punjab [1955] 2 SCR at 236- 237 (Mukherjea, CJ.), A. Sanjeevi Naidu v. State of Madras [1970] 3 SCR 505 at 511 (Hegde J.); U. N. Rao v. Indira Gandhi [1971] Supp. SCR p. 46 (Sikri, C.J.). In the last case this Court held that Article 74(1) was mandatory and therefore the President could not exercise the executive power without the aid and advice of Council of Ministers; but the principle of the decision is not restricted to the exercise of executive power alone. A similar view with regard to the powers of the President and the Governor under our Constitution is expressed by Constitutional lawyers………………………………………………………………….”

And ultimately the Parliament of India is responsible to the people of India through the elections. Hence the chain of events ultimately culminates with the people of India, who are the sovereign, as declared by the preamble of the Constitution, which is the gateway to the Constitution.

Every action, let it be small, or big, let it be taken by the small clerk or the Hon’ble President of India, or even Judiciary shall be ultimately responsible to the People of India through a chain of responsibility as drawn up by the visionary constitution makers. Any organ of democracy, which are in a chain of responsibilities are not ultimately to the people of India is undemocratic, tyrannical and the seat of absolute corruption. To make it a functional democracy, we need to make every organ answerable to the people through the polity. It is the single event of superseding the seniority in appointment of CJI by the Indira Gandhi government in 1970s which are on and off quoted to declare that the judicial independence is compromised. When the Indira Government made such a manipulation, it was ultimately made to be answerable. In the subsequent election people could make ultimate verdict(1977). That is the dance of democracy. In such a vibrant and functional democracy, when the polity faults, the people can correct it through ballot. But all these two decades when the judicial authority faulted, the people were made mere spectators to such a constitutional violations and undemocratic practices. The oligarchs enjoyed the fruits of unquestionable power and authority, even usurping into every aspect of executive and legislative authorities. We have seen plethora of judgments, which encroached the line of separation of powers! Many of them having violated the fundamental rights of have-nots! But the people of India, the supposed to be sovereign, could not make the system accountable to anybody. Then only, the people of India can be declared as the sovereign and roll the greatest democracy in the world to the ultimate epitome of salus populi suprema lex,  nay, ‘welfare of the people is the supreme law’.  The greater founding fathers of the Nation had that vision in their mind and the same was translated in to letter and spirit while adopting to the adult franchise also.

But it is painful to realize that the judgment in the judges appointment case thrashed such a vision and thrown the democratic principle into the foul drainage. The rusty parliamentary democracy is put into burning chambers of judiciary to mould a sharp weapon of collegium, having double edges to cut both sides. It threw the democratic control over the judiciary into coma, if not full stop, resulting into convulsions. Now the judicial system grabbed the authority of appointment and transfer of judges and the advice of the Supreme Court collegium is binding on the President of India against the principles of the Article 75 of the Constitution, which cast a responsibility to the President to act upon the advice of the Council of Ministers. The Constitution envisages that the president thus acting upon the advice of the council of ministers is ultimately responsible to the people of India, through the Parliament. Hence, it was the people of India, who were appointing or transferring the Judges of India (Supreme Court and High Courts) through its authorized representatives. The Council of Ministers as well as the President of India, while acting upon the chain of events, it is the people’s sovereign which ultimately is the supreme one in the constitutional democracy takes the decision and executes through its appointed agents, namely the council of ministers or President of India, all being elected directly or indirectly, and is answerable to the people for any of their commission or omission whatever may be.

So far as the issue of amendability of the Constitution is concerned, it was held that Constitution is amendable to the extent it does not affects the basic structure of the Constitution. However this judgment was not specific as to what forms the basic structure of the Constitution. Judges gave their own examples of basic structure and enumerated few of them.  There was no unanimity of opinion within the majority view either.  There are diversity of opinion among judges itself, what is the basic structure of the Constitution. The plethora of opinions, which scattered the said enumeration of basic structure are as given below:

 According to Justice H.R. Khanna, democracy was a basic feature of the Constitution and included free and fair elections.

Justice K.K. Mathew held that the power of judicial review is an essential feature.

 Justice Y.V. Chandrachud listed four basic features which he considered unamendable:

• Sovereign democratic republic status

• Equality of status and opportunity of an individual

• Secularism and freedom of conscience and religion

• Government of laws and not of men i.e. the rule of law

Sikri, C.J. explained that the concept of basic structure included:

• Supremacy of the Constitution

• Republican and democratic form of government

• Secular character of the Constitution

• Separation of powers between the legislature, executive and the judiciary

• Federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy

• Unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• Sovereignty of India

• Democratic character of the polity

• Unity of the country

• Essential features of the individual freedoms  secured to the citizens

• Mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the

Constitution and the provisions into which they translated such as:

 • Sovereign democratic  republic

 • Parliamentary democracy

 • Three organs of the State

 So ultimately the doctrine of  basic structure remains to be the structure made of wax, which takes the desired shape instantly, in accordance with the whims and fancies of the judge. Anything can be moulded into this structure, by justifications, and anything, which the parliament Acts can be nullified under ever flexible and ever changing shape and structure of this doctrine. Rather the doctrine of basic structure lacks any concrete structure at all and it's only a mouldable and mutable theory, which can suit every person according to his requirement.

Even when the theory of basic structure never envisages that the ‘Supremacy Of Judiciary’ and ‘Independence Of Judiciary’ as the basic structures of the constitution, the judges-2,3 & 5 judgements remoulded this wax structure to serve the interest of judiciary and caused amendment to the constitution under Article 32 of the Constitution. The irony is that the doctrine of basic structure declares the plenary power of the parliament to amend the constitution, including the Fundamental rights, and the only limitation is not to destroy the basic structure of the constitution. Whereas under the shadow of the said doctrine read with  Article 32, the Supreme Court amended the constitution in judges-2 & 3 judgements and nullified the amendment of constitution under Article 386 by parliament,  vide judges-5 judgment,  even though none of the above said basic structures were touched by the said amendment.

When the things stood like this, the bolt from the blue happened and the constitution was amended just by the pronouncement of the judgment by the Supreme Court in the Judges Appointment case. It was an amendment to the constitution of India, in all virtual sense without changing even a syllable in the written text of the given document!!  The basic feature of the constitution was amended! It is declared by the Supreme Court that the Parliament of India do not have an authority to amend the basic structure of the Constitution of India. The doctrine of basic structure emerged out of the wits of the same apex court. And the same apex court in another instance, when it came to it’s own issue, jumped the wall and amended the constitution without any reasoning or application of mind. The only application was that it assumed it’s own jurisdiction, encroached into the parliamentary functions, without being answerable to anybody, even to the people of India. The chain of responsibility as envisaged by the constitutional makers was wrecked or was devastated by the said judgment and the people of India are made mere spectators of the authority of Judiciary. Now the Judiciary is not answerable to anybody for it’s conduct, either administrative or judicial. An autocratic, tyrannical, dictatorial, authoritarian, absolute and domineering system has been placed instead of the ever responsible, accountable, answerable and democratic institution. And the hazard took place without the connivance of the Parliament of India. The Supreme Court, in one tongue declares that the basic features are beyond the scope of amendment and on the other hands amends the basic feature of democratic process overnight without any authority. Now the President of India is forced to accept and act on the advice of the Supreme Court Collegium, in contravention of Article 74 of The Constitution of India- a binding dictate. But the Supreme Court Collegium is in turn not answerable to the people of India, who are the sovereign or  to any other authority.  Hence for around last three decades it is in the process of building an autocratic, dictatorial, aristocratic and oligarchic organization and that is almost done also. The collegium is not answerable to none, neither to the Parliament of India, nor to the President of India, or to the ultimate People of India.

In deciding the matter or amending the constitutional provision by judgment it even violated the very equity that: ‘Nemo debet esse judex in propria causa” - No one can be judge in his own case. But the apex court assumed the authority to amend the Constitution of India in it’s own case, where the same court itself was a party to the issue, declared the judgment on it’s own cause, in it’s own favour, implemented it and enjoys the fruits without being answerable to anybody or even to the sovereign people. Hence the people, or the common people apart from those oligarchs, under whose dictates the decisions are implemented are outside the periphery of decision making , either administratively or judicially.

The whole story started when the senior judges were superseded by the then government in appointing the Chief Justice of India in 70s. But, the matter the critics ever cunningly forget is that the same government or the executive, which made such an autocratic decision was ultimately answerable to the people and in the next election, in 1977, the sovereign people made the ultimate verdict. That may not be the sole reason, but surely one of the deliberation in the said election.  Those were the times when constitutional liberties and civil rights were the point of discussion for the common man in the time of election. And the people delivered the verdict.  1971 election was fought on the issues of fundamental rights and directive principles of state policy. The issues were discussed thread bare in public during election campaigns. But with the collegium system in place, the constitutional liberties and civil rights are no more electoral issues, as the electorate are deprived of the decision making on such realms. Now only corruption and money making comes out as electoral issues. Is it the result of better literacy or the erosion of authority of electorate?  The practical sense says that it is the erosion of authority to the electorate, caused through the said judgments. Judges appointments or separation of powers are no more an electoral issue.

Now in the alternative, if the Collegium ever errors in it’s decision, and is bound to err as is not answerable to anybody, what remedy, the people of India, the sovereign has got? This question remains unanswered. Can the apex court declare that the people of India shall stand as a silent spectator to the highhandedness of administrative action by the  Supreme Court, even if it is erring in it’s action?  The said verdict has made the sovereign of the people to the silent spectators without any authority. There are no questions, there are no answers, and there is no answerable chain of authorities. Further the said judgment made those who are in service to the nation as the masters of the people, taking the rights to rule them, in a way even against the collective will of the people. It can take it’s own decision and can judge or evaluate it’s own action without being answerable to any other authorities.  This may be the replication of the authority enjoyed by some of the most ruthless monarchs in history.

Chain of responsibility ends with the people of India, Rather “We the people of India” in the democratic process, which is the basic structure of the constitution, even beyond the scope of Parliament of India’s power to amend it.  The resultant change in the process ended up in the amendment of the constitution even without the process of law or the constitution. The constitutional amendments are to be made effective by the parliament of India as per Article 368 of The Constitution.