I write this open letter to the Supreme Court judges, who gave the verdict, neither in my capacity as a scholar who has researched extensively for a doctoral degree on independence and accountability of the Indian higher judiciary, nor as an advocate who assisted the Union of India in the NJAC case. I write this as a citizen of India, who felt it my civic duty to communicate my deep despair at what has been perpetuated by you in the NJAC judgment in my name and in the name of the Constitution of India, which derives its legitimacy from the people.
There is one other reason as to why I write this as a citizen. I cannot even begin to engage with the four majority views as a matter of constitutional law. So deeply flawed is the opinion as a matter of law, so shorn of logic, defying established canons of constitutional interpretation and replete with non-sequiturs that it would take more space than the editors of any newspaper will allow anyone, to make a decent fist of it.
Let me provide an example — Justice Khehar, you, in Paragraph 182, strike down as unconstitutional the inclusion of two eminent persons on the NJAC for having not laid down “qualifications of eligibility” and “having left the same vague and undefined”. The merits of your view aside, any student of constitutional law will know that the judge has a range of tools at his disposal to save a statute from unconstitutionality, which he is mandated by judicial discipline to use. Most significantly, if the provision suffers from vagueness in laying down qualifications then there is nothing stopping a judge from ‘reading down’ a provision to provide precisely those qualifications that are absent. The alacrity with which such a well-established norm was dispensed with, to strike down a constitutional amendment, without any effort to read it down, demonstrates a lack of respect, not just of Parliament, but of the jurisprudence of the Supreme Court itself.
The NJAC judgment is at its core, founded on a combination of mistrust of government, lack of respect for the people of India together with unquestioned faith in your own absolute competence as judges. It is this combination that causes me anguish. The working of the judicial collegium to appoint judges has shown that Justice Verma’s belief, that his brother judges would successfully rise above their prejudices by appointing persons solely on merit, was naïve. Not only have you, notably Justices Khehar and Lokur in the majority, seemingly ignored this unhappy legacy, but have also exacerbated it by basing your judgments on a self-serving image of the Supreme Court. To elucidate, in Paragraph 196, Justice Khehar, you write: “At the present juncture, it seems difficult to repose faith and confidence in the civil society, to play any effective role in that direction. For the simple reason, that it is not yet sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent to the political executive establishment. It is therefore, that the higher judiciary which is the saviour of the fundamental rights of the citizens of this country…”
I say this plainly — the Constitution gives you no authority to comment on the maturity of civil society while deciding a dispute as a judge. It is this contempt for the people of India — for what else is civil society but the people — coupled with the belief that you, as judges, are cut of a different cloth, that is deeply troubling. Given the extensive psychological literature you have quoted in your judgment, you might even know what this state of mind is called — a messiah complex.
This complex is entrenched with a sanguine lack of reflexivity about your own shortcomings. This is exemplified in a passage in Justice Lokur’s opinion (Para 529) reasoning why the view of the Chief Justice of India in appointments must prevail: “It is possible that the executive might have an objection to the sexual orientation of a person being considered for appointment as a judge but the Chief Justice of India may be of the opinion that that would have no impact on his/ her ability to effectively discharge judicial functions or the potential of that person to be a good judge. (Footnote: Australia and South Africa have had a gay judge on the Bench. The present political executive in India would perhaps not permit the appointment of a gay person on the Bench.)”
Your statement could not be more ironic, given that the most recent champion of Section 377 of the Indian Penal Code that penalises sex against the order of nature, is your own Court. With the author of the said judgment serving for an extended spell on the collegium, your lack of reflexivity is quite incredible.
In other, less mature democracies, such partisan comments against elected representatives might be seen as demonstrating incapacity for continuing as a judge. Thankfully in India we have not seen that day yet. But when such insinuations at the entire political class are made from the Bench (Justice Khehar, paragraph 201), I am constrained to draw an unhappy inference: the majority judges acted less as guarantors of the Constitution and more as politicians on the Bench in handing down this judgment.
ADM Jabalpurrevisited Sirs, it was exactly 40 years ago that the Supreme Court experienced its darkest hour when four majority judges pronounced their four concurring opinions in ADM Jabalpur , handing over the life and liberty of citizens to the benefactions of the government. Justice Khanna had struck a brave voice of dissent.Now, in an ironic twist of fate, you have pronounced four further concurring opinions in what history will judge as the ADM Jabalpur of our times. Like ADM Jabalpur , 40 years from now, as judicial primacy in appointments continues unabated, the NJAC judgment will leave the Supreme Court much to atone for. As Justice Khanna’s opinion does today, Justice Chelameswar’s dissent will then provide the only silver lining. To arrogate power is human; to humbly surrender it because the law demands it, as Justice Chelameswar does, requires a fortitude that time will recognise as rare. His wise words, unheeded by the majority, will then be enshrined in the annals of the Court’s history: ‘reform that you may preserve’.
(Arghya Sengupta is founder and research director of the Vidhi Centre for Legal Policy, a New Delhi-based legal think-tank. The views expressed here are personal. )
TOWARDS AN INDEPENDENT JUDICIARY
Judging the Judge-maker
The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.> Read more
The citizen and the politics of the verdict
The judgment is founded on a mistrust of government, lack of respect for the people and unquestioned faith in the competence of judges> Read More