By Nakul Dewan.For reasons which will fully appear in my discussion on the Second Judges’ Case ……. never has a majority judgment of the Sup. Ct. reached a lower level of judicial incompetence. Judicial incompetence takes the form of ignorance of the legislative history; ignorance of the provisions of our Constitution; ignorance or disregard of well settled principles of interpretation; ignorance of the meaning of the ordinary English words; and begging the question to be proved. .– H.M. Seervai, Constitutional Law of India, p. 2928 .H.M. Seervai’s analysis and Lord Cooke of Thordon’s article titled Making the Angels Weep are two must-read critiques on the majority judgment in Supreme Court Advocates-on-Record Association v Union of India (1993) (the “Second Judges Case”). Both of them set out a common chorus: it was unfathomable that the majority would interpret the English word “consultation” to mean “concurrence”, whether as an ordinary parlance or for the purposes of interpreting a constitutional provision, and that judges must appoint judges as a sine qua non for judicial independence..For those who may not have read the recent 1,030-page decision of the Supreme Court in Supreme Court Advocates-on-Record Association v Union of India (the “NJAC Case”), the decision has its roots in the majority view of the Second Judges Case. The Court had held that under Article 124 of the Constitution of India, the power of the President to appoint judges of the Supreme Court after mandatorily consulting with the Chief Justice, in fact, meant that any appointment required the Chief Justice’s concurrence. The Second Judges Case also set out that the Chief Justice’s concurrence would be that of a collegium comprising of three of the senior-most judges of the Supreme Court..This self-declared judicial primacy provoked Seervai’s reaction extracted above, as well as a critique by Lord Cooke where he hinted at a judicial overreach when he said,.“…the surprise with which one reads the majority judgments ….. is coupled with a degree of envy…‘[c]onsultation’ has been held to mean ‘concurrence’ and the judicial technique employed in reaching that result must deserve close scrutiny.”.The Second Judges Case was followed by the Supreme Court’s decision In re Special Reference 1 of 1988 (the “Third Judges Case”), which increased the strength of the collegium to five senior-most judges, leading Lord Cooke to write another critique titled Where Angels Fear to Tread, where he stated,.“[a]ny eccentricities exhibited by the second and third Judges cases are Homeric nods by comparison with the whole corpus of the work of the Supreme Court of India.”.The actual working of the system, both pre and the post the Second Judges Case, has come in for its fair share of criticism. In the NJAC Case, the Supreme Court could have relooked at the issue by referring the issue to a larger bench. However, despite such a submission having been made, the majority has chosen to accept the decisions in the Second and the Third Judges Case and has proceeded to hold that the primacy of the judiciary in relation to the appointment of judges is part of the basic structure doctrine, from which Parliament cannot derogate even by way of a Constitutional amendment..Though India has one of the strongest judiciaries in the world, the majority considered it appropriate to categorize as “out-rightly obnoxious” the theoretical ability of non-judicial members of the NJAC to override the views of its judicial members in relation to appointment. That, it is respectfully submitted, is a self-declared parens patriae approach, which has been used to justify completely cocooning judicial appointments from the democratically elected political-executive establishments..That, it is respectfully submitted, is a self-declared parens patriae approach, which has been used to justify completely cocooning judicial appointments from the democratically elected political-executive establishments..Going further, one of the bases for such self-insulation has been the Court’s finding on the lack of maturity of Indian civil society..The Court found,.“[i]n conclusion, it is difficult to hold…that the wisdom of appointment of Judges, can be shared with the political-executive. In India, the organic development of civil society, has not yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance. .In our considered view, the present status of the evolution of the “civil society” in India, does not auger the participation of the political-executive establishment, in the selection and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court, to another.”.Given that the plain language of the Constitution only required consultation, a mechanism that remained in place for over 40 years and until the decision in the Second Judges Case, the Supreme Court’s observations suggest a degeneration of Indian civil society and the institutions of power within India. It is difficult to find the objective evidence on which such a finding has been made in the NJAC Case. Unlike the constitution of many of our neighbouring countries, the Indian Constitution has not failed her people, and that cannot be attributed only to the fact that concurrence of the collegium has been taken for judicial appointments..Unlike the constitution of many of our neighbouring countries, the Indian Constitution has not failed her people, and that cannot be attributed only to the fact that concurrence of the collegium has been taken for judicial appointments..Irrelevant as it may now have become in the light of the decision in the NJAC Case, it is irresistible to set out a quote Seervai had extracted as a prelude to his discussion in relation to the interpretation of the word consultation in the Second Judges Case..Seervai quoted from Liversidge v Anderson (1942) A.C. 206 at 245, where the Court had stated,.“…‘When I use a word’, Humpty Dumpty said in a rather scornful tone, ‘it means just what I chose it to mean, neither more nor less.’ ‘The question is’, said Alice, ‘whether you cam make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be the master- that’s all.’ (Through the Looking Glass, c.vi). After all this long long discussion, the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has’. I am of the opinion that they cannot…”.Given the findings in the NJAC Case, the interpretation by the Supreme Court in the Second Judges Case now appears to be indelible in any form or manner, as judicial primacy for appointment of judges is now a part of the basic structure. No guesses whether the angel would be a guardian angel or not.
