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December 29, 2022

Governance & Politics

Defending the constitutional order

By Nitin Desai


Defending the constitutional order

Nitin Desai

In the changed political environment, India needs a process that maintains the independence and credibility of institutions

We are in the midst of public disputes about the procedure for the appointments to two sets of constitutionally-mandated positions that should be independent of the executive — judges of the Supreme Court and high courts and the election commissioners. The government relies on the letter of the relevant provisions in the Constitution to argue that the right to decide the appointment rests with the executive. Those who hold a different view are more concerned about the spirit of the Constitution.

Formally, these appointments are made by the President of India who, under the Constitution, has to do so in accordance with the advice rendered by the Cabinet headed by the Prime Minister. The exact wording of the relevant provisions of the Constitution is necessary but not sufficient. One must also take into account the spirit and the sentiment expressed by the formulators of the Constitution and their intent.

The present procedure for the appointment of Supreme Court and high court judges, based on the Supreme Court judgements of 1993 and 1998, involves a collegium of senior Supreme Court judges headed by the Chief Justice of India. The executive can ask them to reconsider but it has to accept if the collegium reasserts its recommendation. However, it can hold up appointments by sitting on the recommendation for months.

The government, concerned by the loss of influence on the appointments, proposed and got the parliament to approve, somewhat summarily, a Constitutional amendment and a law to set up a National Judicial Appointments Commission, charged with making recommendations for higher court judge appointments. The membership of this Commission, which would be headed by the Chief Justice, would include two senior judges, the Union law minister and two “eminent persons” whose concurrence would be required for every appointment. But this was struck down as unconstitutional by the Supreme Court based on the argument that it compromised the independence of the judiciary from the executive, which is a part of the fundamental feature of the Constitution and cannot be amended by Parliament.

The Constituent Assembly debate on this matter clearly indicated a universal belief in ensuring the independence of the judiciary from the executive. Hence the Assembly took the middle ground, which required consultation with the Chief Justice on the grounds that “it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day.” (B R Ambedkar). There was a proposed amendment that sought to replace the word “consultation” with the word “concurrence”, which was not accepted. Another rejected amendment was to involve the parliament, which, if accepted, would have compromised the independence of the judiciary from the legislature.

We certainly need a more transparent system by making the collegium process more open to scrutiny. What we should not get is a new institution that empowers the executive beyond the level implicit even in the letter of the law in the Constitution. The central goal must be to preserve the independence of the judiciary from the biases of the executive.

Another issue about a constitutional appointment that is being questioned is the procedure for the appointment of the election commissioners, which, according to the Constitution, shall be made by the President, on the advice of the Cabinet. The matter is before the Supreme Court and there are two private member Bills proposing a substantial change.

In the Constituent Assembly, the committee appointed to deal with fundamental rights recommended that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be provided for in the chapter dealing with fundamental rights. In the discussions in the Constituent Assembly, it was agreed that this should be dealt with in some other part of the Constitution, which would deal with the establishment of an Election Commission. But the Assembly affirmed, without dissent, that in the interest of purity and freedom of elections to the legislative bodies, it was of the utmost importance that the election management body should be freed from any kind of interference from the executive of the day.

The strong role of the executive in the appointment of the head of an organisation, which is outside the executive and is central to the credibility of the electoral process, has been rightly criticised. One measure of the politicisation is the short tenures of an average of 20 months of the appointees since 2001. One must also note that one of the chief election commissioners (CEC), after leaving office, held a ministerial position in the government. Another instance of the use of executive power to dominate an institution outside the executive is when a CEC’s proposal to remove an election commissioner, whose independence was questionable, was rejected by the executive and the commissioner concerned was, in fact, later made a CEC.

The procedure for appointment needs to ensure the independence of the Election Commission and be made more transparent and acceptable to the electorate and the parties competing in the elections. One must await the Supreme Court judgement. The proposal in the two private member Bills for setting up a selection committee with the Chief Justice and designated parliamentarians is unlikely to be passed as law. But one must note that L K Advani, the founder and leading light of the present ruling party, in 2012 had advanced the case for the appointment of the CEC by a committee chaired by the prime minister and which would include the chief justice, the law minister and the leaders of the Opposition in both houses.

The fact is that the Constitution was drafted at a time when there was a certain confidence, frequently expressed in the Constituent Assembly, in the integrity of the then head of the executive, Pandit Jawaharlal Nehru, and the commitment to democracy. Hence there were few safeguards to prevent the abuse of power by the executive to influence the composition of institutions that had to be independent of the executive. The political environment has changed, there is less confidence in the commitment of today’s politicians to the intents of the Constitution, and we now need an explicit process that maintains the independence and credibility of institutions that are central for democracy and the rule of law.


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