Proposal to balance judicial review and Parliamentary power

I rejoiced with the rest of India when the thirteen judge bench of the Supreme Court of India ruled in Kesavananda Bharathi case, though only with a wafer-thin majority that Parliament’s power to amend the Constitution does not include the power to destroy its basic structures. I felt that thenceforth the Constitution will ever remain unimpaired. But when I read the verdict of the majority of the five judge bench of the Supreme Court in the NJAC case, I had the portend of the dangerous extent to which the sword of Kesavananda Bharathi could be stretched through semantic exercises even against seemingly harmless mechanism provided by the Constitution using the amending power like appointment of judges. It administered a warning that even three judges are enough to chop down a law disliked by the judges of the Supreme Court, no matter such amending law had the backing of the entire Parliament and the entire federal unites cumulatively reflecting the will of the people of India. Parliament’s constituent power is shown to be powerless in making alternative mechanism to substitute the collegium system which was created by the judges themselves through two judgments, despite the uniform view that the system is brought with serious flaws. The supporting judgment of Justice Kurian Joseph is almost a testimonial pointing to the nadir to which the collegium system has plummeted over the years. Yet he joined the other three judges to strike down the Amendment on the premise that independence of the judiciary is safe in the collegium system but will be destroyed in the new alternative adumbrated in the Amendment.

The silver line discernable from all the separate judgments is the finding that independence of the judiciary is a basic structure of our Constitution. But on the question whether the Amendment destroyed it, one of the judges (Justice Chelameswar) advanced strong reasons to hold that it does not, while the rest found it a peril and hence revived the flawed system.

When pointed out that the Amendment secured near cent percent support from the Parliament and from the entire federal units envisaged in the Constitution, the majority judges held that it is not enough to protect the Amendment. I have no dissent on that approach provided the Supreme Court could discover through the judicial review that the Amendment destroys the basic structure of the Constitution. Unfortunately no effort was made to chisel down/ expand/ restrict the dangerous potentialities of the Amendment, even assuming that it did have. It would have been judicial statesmanship to show creativity by protecting the Amendment instead of
whipping the weapon of destructibility

Much earlier a seven judge bench in Chandrakumar case (1997 (3) SCC 261) saved Article 323 A and Article 323 B which excluded the jurisdiction of the High Court. By reading down those articles the Administrative Tribunals were protected and the Supreme Court provided an appeal before the division bench of the High Court by widening the scope of Article 27 of the Constitution. (I was on the said seven judge bench) Though there were powerful arguments to strike down those Articles, the judges adopted judicial skills to avert such a drastic course. There are other instances when Supreme Court read down/ expanded/ restricted the provisions of the Constitution in order to protect them as they were brought by the Parliament being the House of representatives of the people of India Only in rare instances where such exercises were found insufficient, did the Supreme Court go to the farthest extent of chopping down constitutional amendments.

It is an enigma why the five judge bench did not refer this momentous issue to be decided by a much larger bench, at least larger than the bench which created the collegium system so that the Supreme Court could re-evaluate the judge made mechanism. From media reports I learnt that a plea was raised by the Bar for adopting such a course, and the bench observed that the plea would be considered later. Of course, if the Amendments were upheld it is a different matter, but when it appeared to the judges otherwise it was only proper that such an issue of great moment was referred to be decided by a larger bench.

The reasoning shown by the majority judges that the presence of even a single member from the executive would erode all the independence of the judiciary is far from convincing. Examples of constitutional institutions like Election Commission, Comptroller and Auditor General, Vigilance Commission, etc. are also meant to be independent, but the fact that they are appointed by the executive alone was not counted by the Constitution makers as capable of impairing independence of those institutions. The reasoning that EC and CAG etc. are different from judiciary is quite unimpressive. The question whether such instrumentalities too could function independently in spite of the executive role in their appointment was not addressed by the judges in the majority. Independence of judiciary is in the sphere of functional performance as its requirement is in the post appointment years. Protection provided for judges, as for removal, payment of salary etc. are also provided for the other institutions such as EC and CAG.

Majority judgments made adverse view of the presence of two members of the civil society mainly on two grounds. First is, the concept of “eminent persons” was not defined, second, the two persons unity could effectively veto the majority opinion in a panel of themselves. But both reasoning are untenable.

At any rate, they are too fragile to overturn constitutional provisions. We should not overlook the reality that unity of two persons in the NJAC could only have prevented the selection of a person from becoming a judge. Such a unity cannot make up an unsuitable person for appointment. Is it not a safety measure helping prevention of unfit person reaching the Supreme Court Bench, even at the risk of its maximum demerit that a suitable person not being selected. Similarly, the presence of one executive representative, that too the Union Cabinet Minister for Law should have been welcomed wholeheartedly, particularly when executive role in selection of judges in all other democratic countries is of a much higher dimension.

Anyway, what should not have happened has happened. We can learn a lesson for future. Is it safe for parliamentary democracy to persist with the power of even a unity of just three judges striking down a constitutional provision on the premise of violation of the ratio in Kesavananda Bharathi case. I wish to make a suggestion for consideration. Whenever it appears to the Supreme Court in future that the validity of any Constitutional provision requires to be decided on the touch stone of basic structure doctrine the same shall be decided by a bench of at least as large as the size which decided Kesavananda Bharathi case. This can be achieved through amendment of the relevant Rule by the Supreme Court itself in exercise of the powers under Article 145(2) of the Constitution of India.

Justice K T Thomas is a former Supreme Court judge Email: ktthomas37@hotmail.com

Views are personal of the author and does not reflect LiveLaw’s views.