Let the language of the Constitution of India speak, as the “supremacy of the Constitution is undisputed and cannot be challenged in a court of law.” In the Minerva Mills vs Union of India, it was decided that the “people of the country, the organs of the government, legislature, executive and judiciary are all bound by the Constitution, which is the paramount law of the land and nobody is above or beyond the Constitution.” The written Constitution is thus the ‘fundamental law’ of a country, the express embodiment of the doctrine of the reign, and rule, of law, thereby nullifying the oft-quoted arguments claiming the ‘supremacy or sovereignty’ by various organs of the state to enable them to act in a manner that is essentially (and sometimes) unchecked and uncontrolled. And that includes all three organs of a nation state from time to time.
In fact, the first, foremost, final and basic feature of the Indian sovereignty is that the superiority of the Constitution over a law made by Parliament is founded on the following principles: (1) That the Constitution was made by the people. The direct authority of the people cannot be claimed by the legislature, which is a representative body under the Constitution. Since the people constitute the ultimate sovereign who set up the Constitution and the government established thereunder, the law laid down by the Constitution must necessarily be superior to the laws made by the legislature, which is an organ created by the Constitution itself. And (2) that the source of authority of all organs of the state including the legislature is the Constitution, which created them. It follows that the legislature cannot exercise any power which is not conferred upon it by the Constitution.
Thus, it is the wealth of command, control and checks-and-balance, in the form of ‘accurate-information’, enshrined in the Constitution of India, which certainly should be preferable to ‘agenda-interpretation’ of any or every ‘interested parties’ of all hues of the state. Thus stipulates Article 124 (1): “There shall be a Supreme Court of India” … Article 124 (2): “Every Judge of the Supreme Court shall be appointed by the President … after consultation with … the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose … provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice shall always be consulted.” The word ‘consultation’ in the appointment of judges in the apex court is the key.
A plain and simple meaning of the above mentioned Article 124 should be clear even to a layman—that the President of India is central to the appointment of Supreme Court judges and that the judges of the apex court have a helping role to play vis-a-vis appointment of their colleagues to the bench, through ‘consultation’.
Compare this helping role of the judge with that of the role of the Council of Ministers vide Article 74 (1): “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in exercise of his functions, act in accordance with such advice.” Further states Article 74 (2): “The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into any court.” In contrast, the language of Article 124 pertaining to appointment of judges, wherein the President “after consultation with the judges” goes to appoint the judge, it did not appear mandatory on the part of the President that ‘consultation’ would automatically turn into ‘compulsion’ for him to accept the suggestion made during the course of consultation by the judge. Constitution is clear. The Cabinet “aid and advice” to the President is mandatory; the President’s “consultation with … judges” certainly did not appear to be so in the case of appointment of judges.
Hence, the executive held the key to appointment of judges from 1947 to 1995. That is the plain language of the Constitution of India.
Again, Article 127 too emphasises the centrality of the President while appointing ad hoc judges. Here, the Chief Justice of India has to take ‘previous consent’ of the President and “after consultation with the Chief Justice of the High Court” can proceed to appoint ad hoc judges.
It must, however, be admitted that the Indian Constitution has honestly adopted and deftly adapted itself through a via media between the US system of Judicial Supremacy and the English principle of Parliamentary Supremacy by empowering the judiciary with the power of declaring a law as unconstitutional if it is perceived to be going beyond the competence of the legislature according to the distribution of powers, as enshrined in the Constitution.
Thus, owing to a series of gross error of judgement committed by the executive in apex court appointments beginning 1973 when Justice AN Ray superseded three of his seniors (Justices Hegde, Grover and Shelat), followed by repeat bypassing of the senior-most Justice Khanna by a junior justice MU Beg in 1977, the apex court bench understandably started flexing its muscles. This led to a (1993) 4 SCC 441 decision in the Supreme Court Advocates-on-record vs Union of India by a nine-judge bench, overruling the earlier judgement in the SP Gupta vs Union of India (1981) which had upheld the primacy of the executive in the appointment of judges in the Supreme Court. Thus the meaning and interpretation of the word ‘consultation’ of Article 124 (2) was enlarged to include two words ‘concurrence’ and ‘consent’. In other words ‘consultation’, ‘concurrence’ and ‘consent’ became virtually synonymous pertaining to the appointment of judges in the apex court. The baton of appointment passed from the executive to judiciary after a shelf life of 48 years—1947 to 1995.
Here, a question can be asked: Has the quality of judgment improved with the change in the mode of appointment of judges—from the executive’s privilege to the collegium’s prerogative to select judges? Indeed, a sensitive subject with no categorical answer as the law may be on the right side of the change-making decision. But morality-cum-ethics and law may not necessarily always be on the same page. Why? Because judges are appointing judges.
What happens elsewhere? Although it may not be a fair comparison to make, owing to the uniqueness of India, yet one sees that the US President can appoint any person as a judge of the Supreme Court of the United States. Also, there is no bar to a non-lawyer being appointed. Felix Frankfurter, a law professor at Harvard, after becoming a Supreme Court judge, gave fascinating display of his ability to give verdict based on his deep knowledge of law. In the UK, High Court judges are appointed by the Crown on the recommendation of the Lord Chancellor. Thus, judges do not appoint judges in Washington and London, the two democracies from where our Constitution has borrowed extensively. However, the story in India is different. At least as on date.
The author is an advocate, Supreme Court
