Tyranny of the Unelected1 Vs The Will of the People2

The debate on the method of appointing judges in the Supreme Court of India and the respective
High Courts in the states has been of much discussion in the public space in India in past one
month. Some major threads from the various arguments in this issue have been, first, the question
of separation of powers and the mutual independence of the three organs of the government
(executive, legislature and judiciary) from each other. A second argument is that the Supreme
Court of India is the custodian of the Indian Constitution and in this sense it has the sole authority
of deciding the constitutionality of a legislative or an executive decision and in this right the
judiciary assumes a first among the equals kind of status in the separation of powers doctrine Vis-
-vis, the executive and the legislature. Third argument is seen within the domain of the
constituent powers in the Indian Constitutionalism and it treats the contentious issues within the
separation of powers doctrine to be solved by a constituent assembly which was actually convened
to create the constitution of India. The most common translation of the museum of constituent
assembly for the usurpation of the constituent powers begins with a certain imagination of the will
of the people. So, the control over the constituent powers in the Indian constitutionalism requires a
special kind of constitutional interpretation which generally goes as In the name of the people
A fourth argument can be put forward from the perspective of popular representation in the
separation of powers doctrine which in India only Legislature and to some extent Executive has,
and in this right any sovereignty of the Judiciary over certain issues within the separation of
powers doctrine can be termed by the elected representatives as the tyranny of the unelected.
This paper aims at dealing with questions and issues related to these four arguments listed above
and see the recent judgement by the Supreme Court of India concerning the annulment of 99 th
constitutional amendment act 2014 and the way it has been perceived publicly.

The Legal History: The Judges' Cases

The three judges cases have been determining the course of the development of this debate on the
appointment of the members of the higher judiciary. The cases are the following:

1. S. P. Gupta v. Union of India - 19831 (also known as the Judges' Transfer case)

2. Supreme Court Advocates-on Record Association Vs Union of India - 19934

3. In re Special Reference 1 of 19985

The judges appointment cases in India have taken very important turns in the course of
interpretations by the Supreme Court through its various judgements, right from the judgement in
the first judges case where the executive had complete primacy to elect judges and the Chief
1 A Term used by the Union Finance Minister Arun Jaitley on the recent NJAC Judgment.
2 Justice R. M. Lodha, the ex Chief Justice of India stated that constitutionalism requires also the constitution to be
protected sometimes from the Will of the People.
3 http://indiankanoon.org/doc/1294854/
4 http://indiankanoon.org/doc/753224/
5 http://indiankanoon.org/doc/543658/
Justice of India had a very important but only an advisory role to play in it. A very important
change happened in the second Judges case in 1993 when two very important interpretations were
given, first, Chief Justice of India means the Collegium of Judges from the Supreme Court and
second, that the idea of consulting the Chief Justice actually means taking his concurrence over
it.

In S. P. Gupta v Union of India (The First Judges Case), the majority of the Court held the view
that judicial independence did not require the view of the Chief Justice of India in the matter of
appointments and transfers to be determinative, nonetheless consultation with him would have to
be full and effective and his opinion should not ordinarily be departed from. The power of the
Executive to appoint judges was very often challenged and also circumscribed but in this
judgement Supreme Court dictated that it is the Executive which will have the last word on the
appointment of the judges. A literal interpretation of the constitution was done and soon
academics, lawyers and political commentators all felt that it gave primacy to the executive in the
process of appointment of judges and failed to institute adequate safeguards.

The second Judges case

The second Judges case in 1993, the role of the Chief Justice of India in the appointment of the
Judges was seen as:

It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the
basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of
India does not have the primacy to persist for appointment of that recommendee except in the situation
indicated later. This will ensure composition of the courts by appointment of only those who are approved of
by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the
independence of the judiciary and the appointment of the best men available with undoubted credentials6.

It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High
Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief
Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as
a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial
appointment of a judge, since the provisions for securing his independence after appointment were alone not
sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute
discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments
was not considered desirable, so that there should remain some power with the executive to be exercised as a
check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the
opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result
of a participatory consultative process in which the executive should have power to act as a mere check on
the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive
element in the appointment process is reduced to the minimum and any political influence is eliminated. It
was for this reason that the word consultation instead of concurrence was used, but that was done merely
to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as
individual, much less to the executive, which earlier had absolute discretion under the Government of India
Acts7.

6 Paragraph 72
7 Paragraph 40
 The primary aim must be to reach an agreed decision taking into account the views of all the consultees,
giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to
know the worth of the appointee. No question of primacy would arise when the decision is reached in this
manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end
of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For
reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of
functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief
Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of
India, that appointment is not considered to be suitable.8

Further in the judgement the Court held:

It was realised that the independence of the judiciary had to be safeguarded not merely by providing security
of tenure and other conditions of service after the appointment, but also by preventing the influence of
political considerations in making the appointments, if left to the absolute discretion of the executive as the
appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with
the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1 ). The
Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the
appointment is ultimately an executive act9.

Dr. B.R. Ambedkar while winding up the debate on this topic concerning judiciary which reads thus : With
regard to the question of concurrence of the Chief Justice, it seem to me that those who Advocate that
proposition seem to reply implicit 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. (Paragraph 248)

The NJAC judgement

The National Judicial Appointment Commission for the appointment of the judges to the higher
judiciary was made an act in December 2014 in the form of the 99 th constitutional amendment act,
but it was struck down by the Supreme Court in October 2015 by calling it unconstitutional.
Justice Kehar puts the main argument of the Judgment as follows10:

Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments
Commission (NJAC). Its perusal reveals, that it is composed of the following:

(a) the Chief Justice of India, Chairperson, ex officio;

(b) two other senior Judges of Supreme Court, next to the Chief Justice of India Members, ex officio;

(c) the Union Minister in charge of Law and Justice Member, ex officio;

(d) two eminent persons, to be nominated Members.

8 Paragraph 41
9 Paragraph 36
10 Page 436
 If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be
rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the
hands of the learned counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of
Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC,
clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the
matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and
Judges, from one High Court to another). The same are accordingly, violative of the principle of
independence of the judiciary.

I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the
provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and
Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon
the principles of independence of the judiciary, as well as, separation of powers.

It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the inclusion of
two eminent persons as Members of the NJAC is ultra vires the provisions of the Constitution, for a
variety of reasons. The same has also been held as violative of the basic structure of the Constitution. In
the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are
liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article
124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is
accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution.

Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments
Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of
the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the
NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have
concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution.

Justice Chelameswar listed a number of cases where the collegium had failed, and concluded in
his dissent11:

The two members of the NJAC can override the opinion of the other four and stall the recommendation. I do
not find anything inherently illegal about such a prescription. For the purpose of the present case, I do not
even want to embark upon an enquiry whether the constitutional fascination for the basic structure doctrine
be made a Trojan horse to penetrate the entire legislative camp . For my part, I would like to examine the
question in greater detail before answering the question. There are conflicting views of this Court on this
proposition. 197 In my opinion, such an enquiry is not required in this case in view of the majority decision
that the AMENDMENT is unsustainable.

For all the above mentioned reasons, I would upheld the AMENDMENT . However, in view of the majority
decision, I do not see any useful purpose in examining the constitutionality of the ACT.

Only an independent and efficient judicial system can create confidence in the society which it serves. The
ever increasing pendency of matters before various CONSTITUTIONAL COURTS of this country is clearly
not a certificate of efficiency. The frequency with which the residuary jurisdiction of this Court under Article
136 is invoked seeking correction of errors committed by the High Courts, some of which are trivial and
some profound coupled with bewildering number of conflicting decisions rendered by the various benches of
this Court only indicate that a comprehensive reform of the system is overdue. Selection process of the

11 Page 567
 Judges to the CONSTITUTIONAL COURTS is only one of the aspect of such reforms. An attempt in that
direction, unfortunately, failed to secure the approval of this Court leaving this Court with the sole
responsibility and exclusive accountability of the efficiency of the legal system. I only part with this case
recollecting the words of Macaulay reform that you may preserve 198 . Future alone can tell whether I
am rightly reminded of those words or not.

Justice Lokur held that the NJACs Article 124A altered the basic structure of the Constitution and
the rest of the NJAC constitutional amendment and act provisions could not stand by themselves.
He argued that the Presidents and the Chief Justice of Indias (CJI) constitutional position was
also affected under the NJAC12:

The opinion of the Chief Justice of India ceased to be an individual opinion (as per the desire of Dr.
Ambedkar) but became a collective or institutional opinion, there being a great deal of difference between
the two. However, the 99 th Constitution Amendment Act and the NJAC Act have considerably limited and
curtailed the authority of the Chief Justice of India (both individually as well as institutionally) and the Chief
Justice of India is now precluded from taking the opinion of other judges or of any person outside the NJAC.
The Chief Justice of India has been reduced to an individual figure from an institutional head.

Dr. Ambedkar was not prepared to accept the opinion of the Chief Justice of India (as an individual) as the
final word in the appointment of judges. This is because the Chief Justice of India has frailties like all of us.
The apprehension of Dr. Ambedkar was allayed by the Second Judges case and the Third Judges case which
made it mandatory for the Chief Justice of India to express a collective opinion and not an individual
opinion. The collective and unanimous opinion (duly reiterated if necessary) would bind the President being
the collective and unanimous opinion of persons who were ex hypothesi well qualified to give proper advice
in matters of this sort. However, the 99th Constitution Amendment Act and the NJAC Act reversed the
process well thought out in the Second Judges case and the Third Judges case and have taken away the
constitutional authority of the Chief Justice of India and placed it on a platter for the NJAC to exploit.

Justice Kurian Joseph observed:

Direct participation of the Executive or other non-judicial elements would ultimately lead to structured
bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a
committed judiciary, however remote be the possibility, is to be nipped in the bud. According to Justice
Roberts, court has no power to gerrymander the Constitution. Contextually, I would say, the Parliament has
no power to gerrymander the Constitution. The Constitution 99th amendment impairs the structural
distribution of powers, and hence, it is impermissible13. []

All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the present Collegium
system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the
Collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and
many a time not unfounded too, have been raised that its approach has been highly subjective.14

Deserving persons have been ignored wholly for subjective reasons, social and other national realities were
overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny
such benefits to the less patronised, selection of patronised or favoured persons were made in blatant
violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the

12 Page 878
13 Page 922
14 Page 923
 Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court,
particularly the Supreme Court, often being styled as the Court of the Collegium, the looking forward
syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite
some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship
has kept up the expectations of the framers of the Constitution. Though one would not like to go into a
detailed analysis of the reasons, I feel that it is not the trusteeship that failed, but the frailties of the trustees
and the collaborators which failed the system.

There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active
silence of the Executive in not preventing such unworthy appointments was actually one of the major
problems.

The Second and Third Judges Case had provided effective tools in the hands of the Executive to prevent such
aberrations. Whether Joint venture, as observed by Chelameswar, J., or not, the Executive seldom
effectively used those tools. Therefore, the Collegium system needs to be improved requiring a glasnost and
a perestroika, and hence the case needs to be heard further in this regard 15.

Contentious Issues in the Second Judges case.

How much proper is it to translate the language of the criminal law and theology to the
constitutional law in the same spirit? Two major conclusions from the second judges case were
that first the chief Justice of India means a collegium of judges which was defined as the
collegium of the Chief Justice of India and the four senior most judges of the Supreme Court and
second that the word consultation with the Chief Justice actually meant taking his
concurrence. This second conclusion of translating consultation as concurrence seems to be
major problem as well in the recent NJAC judgment.

The legal history of the word concurrence is rooted much in the criminal law and not in the
constitutional law. In Criminal law one has to define responsibility and then fix the retribution on
somebody and here the word concurrence is required to fix the responsibility and define the
retribution. The Criminal law has an essentially fixating character of the quantum of punishment
once guilt is decided and so it is mostly preventive and negative in its character while the
constitutional law has an essentially positive character as it is always looking for the possible
interpretations of the constitution to suit the changing needs and realities.

A second reading of the word concurrence comes from the study of theology 16 on how does God
engage with human beings? There are three ways: first called the way of Conservationism where
God engages with the human beings through some natural laws which are conservatory in nature,
second is the way of Occasionalism, where there is an element of choice to human beings and they
interact with God still keeping their capability to make choices intact, third way is the way of
Concurrentism, it means that both the will of the people and the divine laws have to concur with
each other to give the required effect. It reminds one of a recent argument given by a leading
constitutional expert Rajeev Dhawan17 where he distinguished the political texts from the texts of

15 Page 924
16 http://plato.stanford.edu/entries/occasionalism/
17 https://www.youtube.com/watch?v=tD2GNu556aA
justice and required the texts of justice to be immune from the political interpretations; they only
needed to be interpreted judicially as well as constitutionally. So, if the word concurrence is used
instead of the word consultation, it elevates the position of the Chief justice of India in such way
that his office seems to be commanding a wisdom whose assertion can also mean the opposite
what is written verbally in the Constitution, i.e. the President shall appoint the judges upon the
consultation by the Chief Justice of India, the original letter and spirit of article 124.

Invoking the doctrine of the constituent powers will also not help settle this issue because there
is a very peculiar situation within the doctrine of separation of powers; the problem of situating
oneself at a reference. The situation is that the constituent assembly acts as a window which
provides for a fresh start of a parliamentary democracy like India, and aims at putting the
government under internal checks and balances by recognizing three organs of the government
and making them immune from each other. At the same time the three organs have the tendency to
gain primacy over each other and this tendency is assumed or else the separation of power
doctrine will not be under any kind of constitutional interpretation problem. Now how do they
attempt to gain primacy, this question goes to the limits of both democracy and the expert advice.

This is essentially a problem of modernization; there is always a tussle between democratic

character and the expert knowledge which is central to the modernization framework applied to
study India. One such account is the study of the tussle between parliamentary sovereignty and
judicial review explained to us by the writings of Lloyd and Susanne Rudolph. Rudolphs 18 talks
about a conflict between parliamentary sovereignty and judicial review in his study of the Indian
democracy and goes onto discussing a basic dilemma within the modernization theory given by
Samuel P. Huntington, which tries to put the post colonial democracies under a framework of
modernization. According to this framework, there is always a tussle going on between the
democratic character of the state and the modernizing character of the state which is generally
based on the idea of expert advice given to the elected representatives to govern the state. Rudolph
sees the Indian judiciary as one such body intrinsically located within the separation of powers
doctrine and then invoking the idea of judicial review by claiming to be the sole body to have the
expertise to review any act or statute over its constitutionality. This tendency to invoke judicial
review and then to ground and strengthen it further through judicial decisions has seen some
landmark cases in the history of the constitutional law in India. They are much discussed and
accounted for, the Shankari Prasad judgement in 1953 to the Golaknath judgement in 1967 and
then finally the land mark Kesavanand Bharti in 1973. All these judgements had a similar pattern
that is the judiciary establishing itself in the separation of power doctrine. One way to look at the
tussle between the parliament and the judiciary can be that the parliament had the supremacy over
amending the constitution without any limit and with the help of these judgements the Supreme
Court in 1973, brought forward the idea of the basic structure through which the parliament was
restricted in changing the constitution beyond what was defined as its basic structure. The basic

18 L. Rudolph and S. Rudolph, (2008) Judicial Review Versus Parliamentary Sovereignty in Explaining Indian
Institutions: A Fifty Year Perspective, 1956-2006: Volume 2: The Realm of Institutions: State Formation and
Institutional Change, New Delhi, Oxford University Press, p. 183-210.
structure was not defined in a closed sense; the Court kept on interpreting and adding new subjects
within the domain of the basic structure of the constitution.

A Political Resume of the Judges

It is not that his Lordship could do no wrong, there have been cases of misbehaviour reported
from the Supreme Court judges and also there is some public knowledge about the links of
favouritism between the executive and the judiciary. Some examples worth discussing are the
cases of Justice A. S. Anand against whom the allegations of misappropriation of money and
promoting his favourites to the high courts had surfaced and the litigant approached the President
of India K. R. Narayanan in this regard, President sent him to the Law Minister Ram Jethmalani
who seemed to undertake the issue forward, but the then Government became too apprehensive to
go ahead with such a step as it could open up many new fronts of political complications both in
the Judiciary and the Executive, so for mainly political reasons, they chose not to go ahead with
such a proceeding. Second such case is the case of Justice Y. K. Sabharwal against whom there
was an allegation that his sons operated out of his official residence pursuing corporate activities,
and also that there was a contentious deal of a property worth 100 crores in Delhi. A recent
revelation by Justice Markandey Katju 19 also tried to publically implicate Justice Sabharwal for
not acting against a particular judge of the Madras High Court. Justice K. G. Balakrishnan was
also publically implicated as well as humiliated for his conduct and behaviour and so was Justice
P Dinakaran and these is a public perception that both Justice Balakrishnan as well as Justice
Dinakaran had to undergo a much worse defamation and humiliation because they were from the
Dalit background20.

19 https://www.youtube.com/watch?v=bsohbKm8V_M
20 http://kafila.org/2011/04/07/corruption-caste-indian-judiciary-udit-raj/
These two figures below depict the religious as well the caste based representation of judges in the
Supreme Court of India21:

Chief Justice Associate Justices

Hindus: 30 (88.23%) Hindus: 126 (80.76%)

Muslims: 3 (8.82%) Muslims: 16 (10.25%)
Sikh: 1 (2.94%) Sikh: 4 (2.56%)
Other Religions: 0 Other Religions: 10 (6.41%)

140
120
100
80 Hindu
60 Muslims
Sikh
40
Other Religion*
20
0
Chief Assoc.
Justices Justices
Note: Other Religion is a category for all Christian, Zoroastrian (Parsi), Buddhist and Jain
justices.

Figure 1

Religious Breakdown on the Court (1950 to 2006)

21 Shyam Krishnan Sriram, Caste and the Court: Examining Judicial Selection Bias on the Bench Assignments on the
Indian Supreme Court. Thesis* Georgia state University, 2006.
Chief Justices: Associate Justices

Brahmins: 16 (47.05%) Brahmins: 51 (40.47%)

Non-Brahmins: 18 (52.95%) Non-Brahmins: 75 (59.53%)

80
70
60
50
40
Brahmin
30
Non-Brahmin
20
10
0
Chief Associate
Justices Justices

Figure 2

Caste Breakdown on the Court (1950 to 2006)

All this analysis does not settle the primary question started in the beginning of the paper as
to what should be the method of the appointment of the judges; we have three bases of
judgement for the purpose of the appointment of the judges:

1. Executive should have the power to appoint the Judges according to the original letter
and spirit of the article 124 which says that the President shall appoint the judges
upon consultation with the Chief Justice of India. (the First Judges case)
2. In the Second Judges case the Chief Justice of India has been read as a collegium of
judges comprising of the Chief Justice and some senior most judges of the court and
the Chief Justice should have a concurrence over the appointment and not merely
his consultation. This inherently assumes a hierarchized collegium if the members of
the executive and the civil society are going to a part of it. And the current members
of the Governement have equated this system to be like that of the Gymkhana Club 22
where members appoint members.
3. A third base is the creation of a six member body of the collegium according to the
99th constitutional amendment act now deemed unconstitutional which has three
senior most judges of the Supreme court, the law Minister of India and two eminent
members whose eminence is read in the area of jurisprudence. And any objection of
two members upon a candidate will cancel his/her scope of consideration for the post
of the judge of the higher judiciary. This Collegium is not a hierarchized collegium,
all the members have the equal power to agree or disagree under it which the Supreme
Court found problematic as seen from the quotes of judges from the recent NJAC
Judgement.

There are some institutional questions also which need some attention here, in the recent
NJAC judgment; both the Supreme Court and the Cabinet (as per the statement made by a
very senior Cabinet Minister) agree that its only the Supreme Court which has the authority
to decide over the constitutionality of any act. A very similar correspondence can be seen
happening between various parties when the event of American Independence took place and
in the next few decades after that. In between the American declaration of independence and
to the rewriting of the constitution in 1787 and finally in the famous Marbury vs. Madison
case, this question has been dealt and discussed. Although a solution could not be reached, I
want to end with a simple thesis: contrary to our ordinary and casual view, constitutional
interpretation is not and was never intended to be solely within the province of the court, for
constitutional government implies that the ultimate interpreter of our fundamental law is not
an autonomous judiciary but the interactive understanding of the people; their representatives
and their judges together23.

22 A social club in India

23 Agresto John, (1984) The Supreme Court and Constitutional Democracy, Cornell University Press, Ithaca and
London, pp. 9-19.