The `Supreme' And The `Supremer'

Sudeep Mahajan, Advocate
Ex-Additional Advocate General, Haryana
Punjab & Haryana High Court, Chandigarh

Date : 22/06/2023
Location : Punjab & Haryana High Court, Chandigarh
📱 +91-9814025102

The `Supreme' And The `Supremer'

Of late the Parliament, the Executive and the Judiciary, seem perpetually locked in the battle of supremacy and the article 124 of the Constitution of India, in particular, has long been a battleground of tussle between the Union Government and `the Union Judiciary' for seeking that primacy in the matters of appointment of judges to the Supreme Court and the various High Courts. Prior to the verdict handed down in the case of S.C. Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the judges were appointed to the Supreme Court by the President of India, "by warrant under his hand and seal after Consultation with such of judges of the Supreme Court and of the High Court .... as the President may deem necessary...". This expression with regard to `consultation' however was radically altered by the Supreme Court in the above referred to case in 1993, when the word "consultation" was interpreted by the 9-judge bench, to mean "Concurrence" or "Conformity", with the opinion of the Chief Justice of India. It was further laid down that in case of a Supreme Court the proposal is to be initiated by the CJI and in the case of a High Court by the Chief Justice of that High Court and in the event of Conflict of Opinion, the view of the Chief Justice of India, is to prevail.

It is not that the system in place prior to 1993, in which the executive had the primacy, as per the express provision of the Constitution, was found rotten or broken down by the Supreme Court. In fact, to the contrary some very eminent judges such as Justice C. A. Vaidyialingam, Justice V.R. Krishna Iyer, Justice R.S. Sarkaria, Justice V.D. Tulzapurkar, Justice O. Chinappa Reddy, and Justice Kuldeep Singh, amongst the many more outstanding judges, had adorned the chair, under the original system in place prior to 1993.

Recently, the Supreme Court has held in Rajesh Sharma v. State of U.P. (2018) 10 SCC 472, that, "Function of this court is not to legislate but only to interpret the law". In Kotak Mahindra Bank v. A. Bala Krishnan (2022) 9 SCC 364, while relying upon some earlier rulings on the point, a 3-judge bench of the Supreme Court has held that, "it is not permissible for the court to add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation." The Supreme Court, however, does not seem to listen to its own self, as is apparent from the judgement in the case of appointment of Chief Election Commission that is Anoop Baranwal v. Union of India, wherein even after noticing that, " while making a law is ordinarily a power with the legislative branch and being a power it cannot be compelled by a court....", yet being "concerned with the devastating effect of continuing to leave appointments in the sole hand of the executive....", the Supreme Court found, "that the time was ripe for the court to lay down norms". The "norms" laid down provide for appointment of the Chief Election Commission on the same pattern as the Director of the CBI that is by the President on the advice of a committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India. Nothing illegal however was found in the appointment the new Election Commissioner, despite summoning the file of his appointment from the union Government.

The Question is; is there any limit on the powers of the Supreme Court or does the Supreme Court being `Supreme' has no limit on its powers. It needs to be clarified that the expression "Supreme Court" must be interpreted to mean supreme of all courts as distinguished from supreme of all authorities. The preamble of the Constitution of India makes it very clear that

the people of this country are the ultimate source of all power, whose `solemn resolve' has fathered this constitution and therefore are undeniably `SUPERME.' It is none else but the people of India whose collective resolve has created this constitution. The question that next arises is, which institution best reflects the collective will of the people of India. It surely cannot be the Supreme Court and has to be the Parliament, whose members are directly chosen by the people themselves and therefore the weakening of this institution will necessarily amount to weakening of our democracy. The question that next begs for an answer is, can the Supreme court take over the functions of the parliament? If our democracy is to fit the most accepted definition of `democracy' which is, `a rule of the people, by the people...', then the answer has to be in the negative. The role of the courts, thus, has to be, to only interpret the law, framed by the Parliament and to apply the same in a given set of facts and the circumstances. In doing so it is important not to wonder off too far away from the actual text of the legislation and to reach at a conclusion that is not borne out from the plain and honest reading of the text of the legislation, even if the court is able to write a judgement that spreads over hundreds of pages, for reading in the text of the statute what clearly is not provided for or not intended to be provided for, has to mean taking away from the exclusive reserve of the people of India and thereby diluting their power and consequently the democracy.

Let us now examine the practical application of the new interpretation given to the language of Article 324(2). It is easy to see that in a committee consisting of the Prime Minister, the Leader of Opposition, (who is a leader of the party rejected by the people) and the Chief Justice, the P.M. and the Leader of Opposition will almost never agree upon a same person, giving the actual power, to choose the Election Commissioner, to the CJI. A position not only not envisaged in the constitution but also is one that clearly and decisively takes the power to appoint the EC from out of the hands of the representatives of people of India and thereby from out of the hands of people of India and almost places it in the hands of an authority not elected by the people, which certainly is not a situation that strengthens democracy.

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