Musings on The Constitution-XX Narasimhan Vijayaraghavan

Musings on The Constitution-XX
Narasimhan Vijayaraghavan

B R Ambedkar, for sure, had the last word. This occasion was no different. Read,
“Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the judges of the Supreme Court to be appointed? Now grouping the different amendments that are related to this particular matter, I find three different proposals. The first proposal is that the judges of the Supreme Court should be appointed with the concurrence of the chief justice….

Ambedkar with Rajaji
The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament. The third suggestion is that they should be appointed in consultation with the Council of States.
…There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself, and the question is how these two objects could be secured. There are two different ways in this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, officers of the Supreme Court as well as other offices of the state shall be made only with the concurrence of the Senate in the United States. It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, 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. Similarly, it seems to me that to make every appointment that the executive wishes to make subject to the concurrence of the legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.
With regard to the question of the concurrence of the chief justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgment. I personally feel no doubt that the chief justice is a very eminent, person. But after all the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day. I therefore, think that is also a dangerous proposition.”

From left to right (sitting): Stephen Bryer, Clarence Thomas, CJ John Roberts, Ruth Bader Ginsberg, Sam Alito.
From left to right (standing): Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh
Late Associate Justice Antonin Scalia was a self-confessed Originalist. He believed that it was duty of the Supreme Court to interpret the Constitution as the Founders saw and meant it. In effect, he wanted the present Court to time travel and put them in a position as the Founders would have seen it. He was furious with the precept and practice of an Evolving Constitution. He mocked at it as Revolving and so on. One, that seemingly tuned itself to the changing times and mores. In America, the debate between the Liberals and Conservatives is centuries old. Contextually, digging to the Constitutional history was for the purpose exploring how the Founders conceived the provisions and how they would have applied to the present set of facts and circumstances, before the court today. Per contra, the liberals as Justices David Souter (now retired), Elena Kagan and Stephen Bryer saw and see it differently.
If one reads the US Constitutional history vis a vis the Federalist Papers- 85 of them put together by Alexander Hamilton, James Madison and John Jay under the pseudonym ‘Publius’, ‘ it would be obvious that the words therein have eternal life and meaning’ as Constitutional lawyer Lawrence Tribe says. In our Supreme Court reference and reliance on the Constituent Assembly debates was not off the blocks when the Court was inaugurated in 1950. There was reluctance as reliance was on the Doctrine of Exclusion. That is fascinating ammunition for many a Musing which can wait.
“Our constitutional judges have a retirement age at 62 at the High Courts and 65 at the top court but their shelf lives are far less”-
said Justice V R Krishna Iyer. Age is a number, but it does matter. Why 65, for instance, was fixed for our apex court Judges is contained in a huge debate in the Constituent Assembly and undeniably our rebel friend K T Shah was in the thick of it. It makes fascinating reading particularly the intervention by Jawaharlal Nehru, which was rare and not on a daily basis. He alluded to the Civil Services and compared the retirement ages’ across professions.

Certainty of tenure of the constitutional Judges was a huge factor in assuring independence for Judiciary. In the US, there are only The Nine on the bench. The President gets to nominate them. The Justices have to cross the Senate hearings which has been very partisan as recent examples reveal. Merick Garland nominated by Barack Obama in 2016 did not even get a Senate hearing, as the Republicans declared Obama ‘to be a lame duck President in the election year’, even if there was no such concept in the US Constitution.
Donald J Trump got to appoint two Justices, a rarity in their over 200 year history. Both conservatives, Neil Gorsuch and the controversial Brett Kavanaugh, and that has helped the Republicans tilt the liberal 5:4 vote on critical issues, to now to their side. The US Judges get appointed for life. Justice Paul Stevens retired at 91. Now Justice Ruth Bader Ginsberg, all of 87 years, is holding on to dear life for Trump to be trumped in the Nov, 2020 elections, as she does not want another conservative to replace her liberal outlook.

In India, the High court judges are in office till 62 and Supreme Court judges till they attain 65. But how the age got pegged at this figure…
(Author is practising advocate in the Madras High Court)

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