The cornerstones of our Constitution

TKA Nair

THE  circumstances leading to the enactment of the National Judicial Appointments Commission (NJAC) and the subsequent developments, culminating in the face-off between the executive and the judiciary, are too recent to be recapitulated. Eminent jurists, academics, retired judges and the media have commented upon different aspects of the development. Viewed in the historical perspective of our constitutional law, the NJAC verdict is the latest manifestation of a simmering conflict between the judiciary on the one side and the executive and the legislature on the other. 

Shrouded in the niceties of constitutional law as it has evolved over the years with judicial pronouncements made in different contexts, is the tussle for supremacy in the governance of the State. At the root of it is the very core of our parliamentary democracy: Where does the sovereign power of the State rest and which is the ultimate authority to decide it and exercise it.

We, the people of India — acting through the Constituent Assembly —gave ourselves the Constitution which is the foundation of our parliamentary democracy. The Constitution lays down in detail the institutional mechanisms and processes for exercising the sovereign power of the State through the legislature, the executive and the judiciary. The division and separation of powers amongst these three pillars of the State is fundamental to our parliamentary democracy. Each one is supreme in its constitutionally defined domain but integral to the scheme of governance as provided in the Constitution. 

Thus the duly elected legislature, representing the will of the people, exercises the power to lay down the laws of the land and the executive, accountable to the legislature, exercises the power of implementing them through appropriate institutions and mechanisms. The judiciary exercises the power to ensure that both the legislature and the executive function in accordance with the provisions in the Constitution and the laws laid down by the legislature.

Ever since the Constitution came into force, the governance of the country has been carried out in accordance with the scheme of separation of powers envisaged in it. From time to time, the Supreme Court, exercising its power of judicial oversight, has struck down as unconstitutional legislative enactments and executive decisions. Significantly, some of the enactments were aimed at breaking free from certain constraints imposed by judicial pronouncements. The latest and the most telling instance has been the NJAC verdict which negates a legislation passed by Parliament and ratified by state legislatures, in accordance with the provisions of the Constitution itself. The impact of this verdict goes far beyond the NJAC to the very fundamentals of our parliamentary democracy.

The doctrine of the “basic structure of the Constitution,” enunciated by the apex court in the Kesavanand Bharati case, has been the most decisive turning point in our constitutional history. Without clearly defining what the basic structure is and spelling out what constitutes it, the apex court held it to be one of the inviolate cornerstones of the Constitution. Shorn of legal jugglery, the basic structure of the Constitution is in effect what the majority verdict of a Constitution bench of the apex court pronounces from time to time, the latest being the law of the land till it is modified or overruled by a larger bench of the Court. 

The NJAC verdict sharply reflects this position, with its consequences going far beyond the crafting of a Memorandum of Procedure (MOP) for appointment of judges through a courtroom process. Over a period of time, the perception that through its interpretation and application of the doctrines of “judicial review” and “basic structure,” the apex court has positioned itself as the sole final arbiter of governance in our parliamentary democracy, has gained ground. The words of wisdom and caution of AK Ayar in the Constituent Assembly and Chief justice Kania in the AK Gopalan case have been obscured and rendered outdated. At the same time, with the steady decline in the standing of the legislature and the executive, the judiciary has emerged as the most credible and durable repository of the power of the State.

The legislature, the executive and the judiciary are equally fundamental to our constitutional framework of governance. Beyond courtroom battles, they are partners in sharing and exercising the sovereign power of the Indian State for pursuing the common objectives set forth in the Preamble to the Constitution and the Directive Principles.  Differences of convictions and perceptions on issues of governance amongst them are inevitable and even welcome in the context or the incredible diversity of our country. Dissent, discussion and consensus constitute the very essence of democracy. Viewed in this perspective, wisdom lies in opening an informed national dialogue on all facets of the constitutional issues involved in the developments leading to the NJAC verdict. A comprehensive Presidential reference to the Supreme Court could trigger the process, hopefully leading to better appreciation of the spirit of the Constitution and its restoration in the functioning of the legislature, the executive and the judiciary. We the people of India look forward to it. 

The writer is a former Principal Secretary and Adviser to the Prime Minister.