Is the judiciary supreme over parliament in a democracy?  

By JAASIR MIR 

On October 16, 2015, a five bench of the Supreme Court delivered a historic verdict by 5:1 majority and upheld the supremacy of the judiciary in the appointment of judges to higher judiciary. The court struck down the constitutional provision that pertains to the creation of National Judicial Accountability Commission for the appointment of the judges.
The judgment consisting of 1,053 pages has struck down the constitutional 99th amendment Act of 2014, which inserted the provision of NJAC system for the appointment of judges in the constitution replacing the collegium system. The controversy pertaining to the appointment of judges has been challenged many times. The Supreme Court of India has earlier dealt with it in many cases popularly known as first judge’s case, second judge’s case, third judge’s case and this was now the fourth time and probably it will be now remembered as fourth judge’s case.
The point of contention on which the verdict was upheld in the aforesaid cases was the first judge’s case wherein the primacy of the executive was upheld by the court in the appointment of judges. After that in second judge’s case earlier precedent was replaced and the court upheld the primacy of the judiciary in the appointment while interpreting the word ‘consultation’ with the ‘concurrence’ embedded under article 124 and 217 of the Indian constitution. Then again the third judge’s case was brought before the Supreme Court by way of presidential reference under article 143 of the constitution in which Supreme Court made emphasis upon the collegium system for the appointment of judges. Although, the two jurists late Fali S Nariman and JS Verma, who were principally responsible for evolving the collegium system, stated subsequently that they did not anticipate so many flaws for the system. It was Nariman who went to the extent of saying that he would have been prepared to have lost the case that he won in formulating the collegium system.
Keeping in consideration various pros and cons of aforesaid judgments in mind and the importance of the matter in the democratic setup parliament, which is the supreme authoritative body representing the sovereign will of the people, brought constitutional amendment in laying down the appointment criteria for the judges to higher judiciary. Accordingly amendment was brought in force and this amendment received not unanimous but majority of votes by both the house of the parliament along with the rectification of the states which is necessary for this kind of constitutional amendment.
By striking down this amendment they have not only disrespected the parliament but actually the people of India whose sovereign will is represented in the executive. It is the parliament which is responsible towards the people and the people of India have the sole right to punish the parliament not the judiciary. There is no provision in the constitution that gives them this power to declare it unconstitutional. The court rendered it unconstitutional because of the reasoning it affects the independence of the judiciary which is the basic structure of the constitution. It is true that independence of the judiciary is essential and indispensably a basic structure of the constitution. But in doing this the court cannot undermine the sanctity of the separation of power, parliamentary democracy, parliamentary sovereignty, and supreme will of the people, which also deserves its equal prime importance.
NJAC was to be comprised of the chief justice of India, two senior-most Supreme Court judges, the union law minister and two eminent people. There is no doubt that independence of the judiciary is essential for its functioning in a constitutional democracy. But this can be achieved through other means wherein the judiciary by its innovation could have improved the present system without solely arrogating powers of appointment into their own hands. Law demands to humbly submit itself to the constitution and not to arrogate power in a democracy. Independence of the judiciary is important in a democratic country but the judiciary while making the application of mind has to realise that it cannot arrogate the sole power of appointment to a non-elected body that is responsible to no one.
Every law knowing person knows there are rules of interpretation in the constitution, in which the first duty of the court is to save the provision from unconstitutionality. The SC could have also used various tools of interpretation and could have modelled its verdict accordingly rather than to declare it as unconstitutional. This approach of the court has shown the breach of trust, which they have made to the people of India and to the constitutional spirit. It would have been wiser keeping in view the constitutional importance of the subject matter in mind to refer it to a larger bench of nine judges in order to declare its constitutionality. As rightly said by Justice KT Thomas that the 5 judge bench of the Supreme Court failed in one of the aspects also that a matter involving such momentous importance supported by the entire parliament and the entire federal units of the Republic should have been referred to a much larger bench. He emphasised upon the point that even an issue concerning education was considered by a bench of 11 judges of the Supreme Court in TMA PAI case.
In the constitutional assembly it was time and again retracted that it is the parliament who is the supreme body and who represents the authoritative will of the people and no other body can replace the supreme will of the people. Parliament is judged by the people of India and accordingly appointed by them and removed by them; but who will judge the judges? It is also the fundamental principle of the law that no one can be judge of his own case which is expressed in a doctrine- nemo iudex in sua causa or nemo debet esse judex in propria causa thus raising a genuine concern how can they dilute this doctrine and become judges themselves! The judgment has also raised a valid concern with regard to breach of constitutional trust to the people of India who have given assigned functions to the different wings in the democratic system for performing its particular function without any dilution. There is as such no democratic country in the world where the judges appoint judges themselves.
To my understanding it was Justice Chelameswar’s dissent in 4:1 majority who represented the true spirit of the constitutional law. Justice Chelameswar’s voice of strong dissent may not have affect this time but the history may repeat itself and his dissent will be remembered for endeavouring to bring the ray of light which was left unheard by the majority while upholding the judgment.
—The author is an advocate in the Supreme Court of India. Feedback: jaasirmir008@gmail.com info.akhterrasool@gmail.com

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