It began as a scintillating courtroom battle, then spilled over into newspaper columns and a Facebook post, and continued in the form of a ‘national debate’ in Delhi’s FICCI auditorium. Throughout its course, both the warring sides – the government and the judiciary – were unrelenting, though it does appear that the judiciary has prevailed, at least for the time being.
But beneath the uneasy calm, there was throbbing anticipation about what the government would do next. Would it cajole or convince its political opponents to close ranks and invoke the powers of parliament to prove its might over the Supreme Court? Or would it meekly comply with the NJAC (National Judicial Appointments Commission) verdict which, by a thumping majority, had decimated the government’s plan to change the structure of judicial appointments?
All this suspicion and conjecture seemed to be heightened by the October 23 Times Now debate on the verdict, which saw Arun Jaitley clash swords with former CJI R.M. Lodha and Senior Advocate Rajeev Dhavan. Former Attorney General Soli Sorabjee was at Jaitley’s side, while senior editor Dilip Padgaonkar and columnist Swapan Dasgupta were to play neutral umpires. And of course, there was Arnab Goswami, both as moderator and agent provocateur.
Has judicial primacy trumped over parliamentary sovereignty and thereby resulted in a rewriting (read violation) of the constitution? Has the unelected Supreme Court, by riding roughshod over “the will of the people” inflicted, in Jaitley’s words, a “tyranny” upon both the country and the constitution? These twin questions formed the theme of the debate.
It threw up no winners, but the tone and tenor of arguments clearly indicated that despite conciliatory gestures, hostilities have not really ceased.
- The NJAC, a system of appointment and transfer of judges, proposed by the government to replace the current ‘collegium’ system was struck down by the SC.
- FM Arun Jaitley sparked controversy by saying the SC decision was “tyranny” of the unelected.
- The debate got personal with Senior lawyer Rajeev Dhavan questioning appointments made by Jaitley.
- During a vigorous debate there was a call to bring both the judicial appointments process and political parties under RTI.
Parliamentary Sovereignty Is a Myth
Jaitley’s Facebook post accused the Supreme Court of committing grave transgressions by a dishonest interpretation of the ‘basic structure’ doctrine in the constitution. He bristled at the court’s “politician bashing” and went on to explain why the verdict could well make BR Ambedkar turn in his grave.
The debate could have been provoked by Jaitley’s Facebook post accusing the Supreme Court of committing grave transgressions by a manifestly dishonest interpretation of the basic structure doctrine. He bristled at the court’s “politician bashing” and went on to explain why the verdict could well make B.R. Ambedkar, the constitution’s chief architect, turn in his grave.
Aghast at these accusations, Justice Lodha penned an Op-ed in The Hindu arguing why the government’s confrontational stance was wrong, and asserting that the verdict was an exercise in constitutional compliance and not an act of judicial muscle-flexing.
Jaitley opened the debate by repeating the same allegations, and went on to add that the court’s insularity and claims of unsolicited victimhood at the hands of ‘scheming politicians’ clearly proved its deep distrust of the principles of democratic governance. It is not for the judiciary to determine what is good for the country- it is the sole prerogative of parliament, he thundered.
Senior Advocate Rajeev Dhavan felt that cynical politicians were trying to use the NJAC to grab control of the judiciary in the name of reforming it. He also criticised Jaitley’s record of judicial appointments as Law Minister in the previous NDA government saying “just examine your own record… none of your appointees were up to the mark.”
Dhavan, who while calling the NJAC “fragile, laden with mischief” had also savaged the verdict as an instance of the judiciary ingloriously “thrust(ing) greatness upon itself”, retorted by saying that “parliamentary sovereignty” was a self- perpetuating myth created by the political class. Parliament “is only supreme in its own sphere”, while the “sovereignty belongs only to the rule of law”, he added.
Who gets to determine this sphere, Dasgupta provocatively asked, but his question went unanswered.
Dhavan’s distrust of the NJAC stemmed from the belief that cynical politicians were trying to grab control of the judiciary in the name of reforming it. His criticism of Jaitley’s record of judicial appointments in his stint as Law Minister in the previous NDA government- “just examine your own record…none of your appointees were up to the mark.”
Continuing with the barbs, he asked if he, as a lawyer, rushed to Parliament when contracts had to be enforced or when someone’s freedom of speech was illegally curtailed by the government. Jaitley shot back by accusing Dhavan of “lumpenising the argument.”
Sorabjee, who preferred to play second fiddle to Jaitley, said that he trusts judges more than politicians, but is vehemently opposed to the judiciary creating a zone of “exclusivity” for itself in the name of safeguarding judicial independence.
Justice Lodha reiterated why the court had not stepped an inch outside the boundaries of the constitution, and had only interpreted it with utmost integrity and fealty to the canons of construction of statutes. He admitted that the collegium system did have its own share of flaws, but emphasized how the NJAC could lead to worse and more “political” appointments.
Jaitley countered him by saying that interpretation doesn’t mean turning the meanings of words on their head, and this is precisely what the court has done.
Judicial Appointments and Political Parties Under RTI ?
Padgaonkar’s question- “Why are we asking who shall appoint judges instead of how judges should be appointed?” summed up the politicised and polarised nature of the entire issue.
The question isn’t just who shall appoint judges, but more importantly, how should judges be appointed.
“Pre-retirement judgements are influenced by post-retirement benefits”, Jaitley is famously reported to have once said. Justice Lodha fully agreed and proffered a suggestion. Three months prior to retirement, a High Court or a Supreme Court judge should inform the government whether he wants a pension, or would prefer drawing the same salary and emoluments by heading some judicial commission or the like. And this disclosure should be in the public domain.
Answering Padgaonkar, Justice Lodha stated that if all stages of the appointment process and the collegium’s deliberations are brought under the RTI Act, it would seek to dispel a good deal of the public’s doubt and mitigate politician’s distrust. Both Jaitley and Sorabjee nodded in agreement.
Goswami, who throughout the debate had maintained a demeanour starkly different from his daily 9 PM one, lost no time in springing back from the sidelines and in a tone of playful mischief, asked Jaitley if he was also agreeable to political parties also coming under the RTI Act.
(Note- at present, all political parties, including the BJP, have been steadfast in their refusal in this regard. Recently, Jaitley’s government has supported this stand before the Supreme Court.)
Jaitley only flashed a disarming smile.
Despite the acrimony, there was one area of consensus. This was about sitting judges appeasing the government of the day in the hope of securing post-retirement appointments.
Justice Lodha suggested that three months prior to retirement, a High Court or Supreme Court Judge should inform the government whether he wants a pension or to draw the same salary and emoluments by heading some judicial commission. And the disclosure should be in the public domain.
“Humpty Dumpty” Judges or Autocratic Legislature?
Towards the end of the debate, Jaitley made one last bid attempt to turn the tables on Justice Lodha and Dhavan. Continuing with his charge of the judiciary’s misuse of the power of interpretation, he said that the NJAC verdict mirrored what Lord Atkins had alleged against the then British government in his famous Liversidgedissent. The only difference was that what the government did in 1941- suspend civil liberties and haughtily tell the House of Lords that it reserved the right to have the last word on the matter, the present Supreme Court of India was doing now.
Lord Atkins was the lone dissenter in the now infamous case in which the House of Lords, unwaveringly bowed before the government – “proved to be more executive minded than the executive.” In the last paragraph, he quoted from Lewis Carroll’s “Through the Looking Glass”:
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Jaitley’s opponents did not take the bait, and instead smiled. Not sounding exactly conciliatory, both Lodha and Dhavan said that on November 3, when the Supreme Court again takes up the NJAC issue, this time to hear arguments on how to reform the collegium system, it would be beneficial to all if vituperative contentions gave way to amicable deliberations.