Mr DY Chandrachud, the Chief Justice of India, justified the system of judges selecting judges (collegium system) established by the Supreme Court of India, based on its own verdict, replacing the earlier system of selecting the judges of the apex courts by a committee consisting of the representatives of the legislature, judiciary and the executive (committee system), on the ground that the collegium system ensures independence of the judiciary. Since, the reason for the replacement of committee system by the collegium system is the enjoyment of independence then, the logical corollary of this proposition, if it is taken for granted, is that, the earlier system of selecting the judges by the committee system was not ensuring independence of the judiciary. Whether this proposition is legally and logically justifiable based on material evidence or not is a question which deserves serious attention. The history of Indian judiciary, however, gives a different picture. Hence, the proposition presented by the CJI to substantiate his argument needs more material evidence to establish its truth value.
So far, there is not much material evidence available to prove that the judiciary failed to enjoy independence in discharging their duties when the judges were selected by the committee system in the apex courts. Moreover, it needs more evidences to prove that the judges who have been selected through the collegium system have been enjoying more independence than the judges selected by the committee system as, some judges of the apex court, who were selected by the collegium system, of course, after retirement, testified that certain percentage of the judges in the apex courts were corrupt. It is a foregone conclusion that corruption and independence cannot go together.
In a landmark judgment, in 1973, a 13-member bench of the Supreme Court, headed by Justice Sikri, all of them were selected by the committee system, barred the legislature in making enactments amending the objectives specified in the preamble, introducing the theory of basic structure of the constitution. Interestingly, it was not a unanimous judgment but a 7-6 divided judgment which shows that each judge in the 13-member bench enjoyed independence in discharging their judicial duties. The Supreme Court bench, headed by Justice Sikri, had virtually prevented the legislature from exercising the powers conferred under Article 368 of the constitution, to amend the constitution, by the people of India. The theory of basic structure declared that the basic structure of the constitution should not be touched by “we the people of India” despite the fact that the constitution itself had been conceptualized and penned by the people of India.
When, the majority judgment barred the parliament which, represents “we the people of India” from making enactments amending the constitution then, the free will and belief of the seven judges, in a way declared that, the independent will and wisdom of the seven judges are more authentic and infallible than the collective wisdom of the representatives of the people of India. However, the founding fathers, who framed the constitution and Dr B R Ambedkar who penned the same were of the firm view that infallibility should not be attributed to any person or authority because, the very concept of infallibility is against the spirit of democracy. Since, the constitution of India is a man-made text, there is no logic which warrants to believe that a man-made document is infallible because, man by nature is an error-committing being. If, committing error is the inseparable part of human nature then, how can a text narrated by man and a declaration made by the collective wisdom of seven human beings be accepted as infallible decrees.
It is to be noted that, Mahatma Gandhi even refused to accept the authenticity and infallibility of God-made religious text as it is. He has made it clear that no part of the God made religious text is acceptable if it fails to agree with truth and dharma in the context of his experience. Further, he elaborated that nobody is expected to accept any statement in any text if it is in consistent with facts and logic. Any text, including religious texts, must be subjected to change in tune with the changing context. The acceptance of any statement in any text as incontrovertible amounts to the acceptance of dogmatism as reliable theory to get authentic knowledge. Moreover, there is no meaning in the acceptance of the theory that the collective wisdom of seven judges are superior to the collective wisdom of more than seven hundred representatives of the people. Fortunately, the constitution of India never accepts the role of the infallible authorities. The theory of the infallible basic structure is inconsistent with law and logic.
The opinion of Justice Chandrachud that a free judiciary is the essential precondition for the practice of democratic polity is acceptable to all stakeholders of democracy. But freedom cannot be considered as the exclusive privilege of the judiciary alone. The founding fathers of the constitution have insisted that freedom should be the birth right of all individuals and institutions in a democratic society. However, nobody is expected to enjoy unregulated freedom without respecting the rights of the other. Hence, it is said that, “your freedom ends at the tip of the nose of the other”. If a person crosses over the legitimate limits of his freedom and touches the other then he should be arrested by the law of the land. Nobody enjoys freedom to encroach the territory without his /her consent. Then, it has become the duty of the individual to regulate oneself, in all his/her actions, to keep away from the territory of the other. Therefore, in democracy, freedom means the self-regulated activity practiced by the individual in the context of his life.
This doctrine of freedom is squarely applicable to all constitutional institutions in democracy. So, all pillars of democracy, including legislature, executive and media, along with judiciary are equally eligible to enjoy freedom in their respective fields of activity. The legislature is free to make enactments within the frames of the constitution and no institution including judiciary never enjoys the rights to frame an act and issue instructions to the legislature to adopt it as the law of the land. Bear in mind that law making has never been envisaged as the legitimate duty of the judiciary by the founding fathers of the constitution. Let there be a free legislature and make enactment in tune with the provisions of the constitution and let the judiciary to review the same freely to ascertain its constitutional validity. The executive should be given the rights to implement the acts within the frames of acts and rules and the media are free to express their views regulating themselves. No constitutional institution enjoys freedom to encroach the territory of the other and making such an attempt is described as “crossing the Lakshman Rekha” which has been prohibited by the constitution to ensure the practice of free and fair democracy.
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