“Law Proposes, And Politics Disposes: Questions Beyond/Beneath ‘Checks And Balances’ ”
By K.M. Seethi
03 September, 2014
Countercurrents.org
There is a gratuitous twist given to the appointment of retired Justice Sathasivamn as the Governor of Kerala by scholars, lawyers and politicians. The controversy raises more questions about judiciary than about the gubernatorial selection. It is as if the Chief Justice of India (CJI) should be a ‘sacred cow’ and the incumbents of that office are expected to be ‘impartial’ and ‘independent’ during and after the tenure of office. Some would say that administering the oath of office to the President is something which demands distancing from posts offered by the same President. Don’t we know that CJI himself is appointed by the President? Administering the oath is only a ritual, not a constitutional obligation. It does not make CJI superior to President. The presence of CJI or other judges is enough for being a witness to the ceremony. The Constitution says: "Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available, an oath or affirmation.” In the US and many other countries, even notary public can do the job. Polemics makes even small legal things cumbersome!
Nobody understands the fact that judges are not born or elevated to that position by God Almighty! They are appointed by the Executive. In the Supreme Court of India, it is the President who considers the panel proposed by the government-in-power which would have many considerations in place, besides the qualifications and eminence. What does that mean? ‘Impartiality’ and ‘independence’ could be a matter of legal and political negotiations subject to the pulls and pressures of the dispensation in power and the currents of political discourses. No doubt, the questions that come before the court need to be considered with the highest considerations of law, justice and constitutionality. Yet, it again cannot be seen as ‘impartial.’ If that was so, all judgements should be acceptable to all, both the defendant and accused! That seldom happens. There is no ‘neutrality’ in judicial dispensation as ‘truth’ is always negotiated and ‘unearthed’ by the powerful. Constitution and laws will not spontaneously emerge on behalf of ‘justice’ or the victims. They will have meaning when human beings with social concerns and legal insights intervene.
It may be noted that CJI is not appointed in accordance with any ‘special’ articles of the Constitution. Article 124, however, says:
(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose... Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:
This clearly shows that there is no ‘special’ provision in the Constitution regarding the appointment of the Chief Justice; as a result, the Chief Justice is appointed in the same manner as for the other judges to the Supreme Court. There is not even an explicit provision in the Constitution which calls for observing seniority, thereby there were instances when juniors got elevated to the position of CJI(Mrs Gandhi did it during her tenure). But conventions and practices demand observing seniority, no doubt.
Recently Justice Markandey Katju, chairman of the Press Council of India and a former Supreme Court judge, argued that the CJI should be chosen on merit, not seniority. There comes again the question of deciding ‘merit’. Who holds ‘merit’? Constitionally, all judges appointed are holding merit. Then the choice comes before the Executive. Even a colloquium or judicial commission cannot decide the merit of the CJI. The reason is that the incumbents of such colloquium or judicial commission should have some ‘merit’. Who will decide their merit? Again the Executive! This obviously means that there is very little scope for ‘independent’ thinking, which means that there is hardly any escape from the ‘invisible hand’ of the Executive. The system of ‘checks and balances’ will work if only there is a space for legal and political bargain, and there is respect for legal and political differences. The position-as-law-demanded has significance in a constitutional system. While ‘in office’ and ‘out office’ there are differences in the ‘interventionist’ role of individuals. That is again determined by a variety of factors; most prominently the political order in place and its theoretically enunciated political and social norms.
It may be noted that Judicial Appointments Commission Bill 2013, introduced in Parliament during the previous government’s time, sought to bring in regulations relating to appointment, transfer and quality of candidates as judges. The Commission was sought to be set up for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, and Chief Justice and other Judges of High Courts by ensuring that the appointments to the higher judiciary are more participatory, transparent and objective. There is hardly any consensus on this issue yet. The debates that sparked off with the senior lawyer and former Solicitor General of India Gopal Subramanium withdrawing his candidature as judge of the Supreme Court of India could be reminder. Gopal himself told the Chief Justice that he was being targeted for displaying "independence and integrity" when he assisted the court twice in a case involving the 2005 encounter killing of Sohrabuddin Sheikh in Gujarat. BJP leader Amit Shah, who was the state home minister at the time, had faced legal scrutiny in the case, he said. His advice to the Prime Minister was “that it's good to have fearless people in the judiciary." Perhaps it is this fearlessness that matters in the making of judges, and thereby in the administration of justice. Law proposes, and politics disposes!
(The author is Honorary Director, KN Raj Centre for Planning and Centre-State Financial Relations and Professor and Director, School of International Relations and Politics, Mahatma Gandhi University, Kerala, India)
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