Musings on The Constitution-XIX
Supreme Court of India
One repeatedly resonating theme that reverberated in the Halls of the Constituent Assembly was Independent Judiciary. KT Shah was among those in the lead. Shah was persistent in his assertions that the three branches of our democratic polity must be separate and independent of each other. One should not be seen to be transgressing into the other. He was particularly cautious in warning that political parties ‘were mundane things dealing in mundane things’ and so they are unlikely to aspire for the higher, as they are partisan beings in mind, body and soul.
“Sir, I regard this as the most important, the very basic requirement of what I would call a Liberal constitution. I am aware, Sir, that this Draft has been founded on the compromise between what are known as Presidential governments and Parliamentary governments. The Parliamentary government has a sort of link between the Executive, the Legislative and the Judiciary. The Presidential tries to keep no such link, and has complete separation of powers between the three principal organs o the State, each embodying the sovereignty of the people in the different aspects of a State’s activities.
The ideal, however, and the reasons for that ideal,which have guided many modern States in basing their constitution upon a doctrine of complete separation have arisen from bitter past experience. In the constitutions like that of England centuries ago, the ultimate combination of all authority in the person of the King, had led to many evils culminating in a Civil War, ending in the execution of one king, and a bloodless Revolution leading to the abdication or expulsion of another king. The arrangement which was evolved thereafter has been kept in conformity with the genius of the British people, not so much by a written Constitution, as by evolving constitutional conventions, supported by centuries of usage. And these have become even more sacred than the written word in a written constitution.
For one thing, Sir, if you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature.This, in my view, is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was contract between the Judiciary and the Legislature, for instance, if it was possible to interchange between the highest judicial officers and the membership of the legislature, then, I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case. The Legislature in a democratic assembly is bound to be influenced by Party reasons rather than by reasons of principle.
I am not decrying Parties. Please do not misunderstand me. All I am saying is that after all, Parties are mundane, dealing with mundane things, and as such they are bound to attach much more importance to considerations of the moment, to merely transitory ideas, to importance of personalities, by which a Judiciary would not be affected. It is of most importance that the Judiciary should be above suspicion, and, therefore, out of or above any contamination. I hope the word is not hard to anybody. It should be above contamination by political prejudices that are rife in all political parties.
If contact or connection is maintained between the Judiciary and the Executive organs of the State, there is also the possibility of undue influence, of misleading, of misdirecting and mis-influencing those who are appointed to interpret the Constitution, those who are appointed to be guardians of Civil Liberties, those who have to administer justice.”
Prof. K.T. Shah (Bihar. General) was particular that for maintenance of Judicial Independence, appointment of Judges must be fair and seen to be fair. It would be noteworthy to highlight that none of our framers had the vaguest idea that the apex court may in a literal coup usurp the powers of appointment of Judges to Constitutional courts to themselves by ‘inventing a beast called Collegium’ as Justice VR Krishna Iyer called it. Contextually read K T Shah’s suggestion while the Assembly this critical issue.
“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years.
Sir, this is an amendment seeking to make the appointment of Judges free from any particular influence. My amendment is that the President, if he makes the appointment, will naturally do so on the advice of the Prime Minister. In my opinion, Sir, if I may so with all respect, this Constitution concentrates so much power and influence in the hands of the Prime Minister in regard to the appointment of judges, ambassadors, or Governors to such an extent, that there is every danger to apprehend that the Prime Minister may become a Dictator if he chooses to do so. I think there are cases which ought to be removed from the political influence, of party manoeuvres. And here is one case, viz. Judges of the Supreme Court, who I think should be completely outside that influence. I am, therefore, suggesting that the appointment of the Judges should be made by the President, after consultation not only with the Judicial services proper, but also with the Council of States so that the party element may be eliminated or minimised, and any political influence also may be avoided.
The suggestion has further this argument in its support that just as in regard to the financial powers the Lower House or the House of People is made supreme, so in matters of this kind, in matters of making high appointments as a pure consideration of balance of power I suggest that the Council of States should be associated, if only to avoid the influence that is likely to dominate when the Prime Minister alone advises the President on such matters.
The Council of States composed, as it is of representatives of States as well as certain interests, would be, I think, more able to be balanced in this matter. Accordingly, the addition of the Council of States as an advisory body to the President in such matters will not be in any way objectionable.
There is of course the obvious precedent of the U.S.A. Senate which is associated in such matters, even though the Constitution of the U.S.A. is based, fundamentally speaking, on a somewhat different principle than that which we have adopted in this draft. Nevertheless, here is a case in which I think it would be well for us to adopt that line and associate the Council of States for advising the President in the appointment of the Supreme judiciary. I hope this will be accepted.”
This was one subject on which many a member spoke. For, a huge proportion comprised of lawyers. There was no dearth of interest or depth in the debate. Of course, as it turned out, as on most amendments, the last word rested with….
(Author is practising advocate in the Madras High Court)