NJAC Debate: Reminiscences of Indira Gandhi

By Cleofato A Coutinho
24 October 2015 22:01 IST

A serious debate is now raging about the supremacy of the Indian parliament and whether the decision of the constitutional bench of the Supreme Court on the National Judicial Appointments Commission (NJAC) usurps the powers of the Indian parliament. The present finance minister Mr. Arun Jaitley, a child of the 1977 emergency has dumped the judgement to be tyranny of the unelected. He holds that if the elected are undermined, democracy itself would be in danger. Another child of emergency the former law minister of the country and present telecom minister Mr. Ravi Shanker Prasad claimed the Supreme Court judgement is against the sovereignty of the Indian parliament. It is extremely surprising that these children of emergency are speaking in the language of Indira Gandhi.

The arguments of the central government led by the attorney general over the primacy of the parliament and his belligerent stand on the NJAC are actually reminiscent of the emergency era. In the early seventies, Indira Gandhi realized the need to tame the Supreme Court judges. She felt Supreme Court would come in her way of implementing her ‘Garibi Hatao’ slogan in the 1971 general elections and after her party returned with a massive majority of 352 of the 518, she thought the will of the people could be used to restore the supremacy of the Indian parliament, which she believed was derailed by the Supreme Court.    

Somehow the utterances of Arun Jaitley and Ravi Shanker Prasad remind us of the role played by H.R. Gokhale (then law minister), Mohan Kumaramangalam and Siddhartha Shanker Ray in what was referred to as the ‘packing the court’. At the root of the problem was the 352/518 seats of Indira Gandhi and the present 282/545 (NDA 336) seats of Narendra Modi. They believed that majorities can manipulate everything.

Make no mistake about it. The will of the majority must be subject to the spirit of the constitution. Majority cannot decide what is right or wrong. That must be left to law and the court.

We have always upheld the independence of the judiciary - the central pillar of our society. There can be no argument over a fact that a few in the Indian judicial system has let the institution down. These few have also entered the system through what is now called the collegium system (judges appointing judges), a system invented by the Supreme Court and championed by one of our finest judges justice J.S. Verma, who later in life accepted deficiencies of that system. The collegium system loaded the judicial component against the political executive. That system was accepted by the society in 1993 when the other pillars of the society went into a state of disrepair. There can be hardly any doubt that the collegium system is non-transparent and though brought about independence from executive had its own failings leading to the rot. There was a consensus that the collegium system must go and a new scheme must be in place.

There is a need of finding a right balance of judicial and political executive components in constituting the appointments commission. The then UPA government brought a judicial appointments commission which had a general acceptance in the society and legal fraternity but the bad handling of UPA floor managers put that scheme into cold storage but the single party majority of the present NDA government led to the loss of balance in favour of the political executive. The present government attempted to dilute the judicial component in the appointments commission through the two ‘eminent persons’ whose eminence was not defined. A close scrutiny of the NJAC debate would show that the focus was never not on the appointment of judges but on the ‘eminent persons’. It is in that context that it was felt that the government could manipulate the system of adjudication in the country. If the collegium system was seen as disease afflicting the higher judiciary, the NJAC brought by the present government was a remedy worse than the disease.

It is said that the ‘father’ built various institutions which the ‘daughter’ attempted to dismantle and one of the institutions which the daughter attempted to tinker with is the institution of the judiciary. Her hurry to bring about social justice through land reforms, nationalization laws, etc., Indira Gandhi saw the courts and in particular the Supreme Court to be a hurdle in her path of social justice.  Indira Gandhi could be acquitted of the charge of ‘packing of court’ as she was in a hurry to implement her ‘Garibi Hatao’ promise. Crawling by the ‘the packed court’ when asked to bend during emergency is unpardonable.

The NJAC judgement comes at a time when our society’s tolerance level is at all time low. The central government is bent on enforcing its writ on all. We are under a system where there is an atmosphere of fear with freedom of speech under threat. Every form of dissent is being hounded upon. The union culture minister has recently told us of his plan to revamp 39 institutions including the Lalit Kala Academy and the Nehru Memorial Museum and library. The literary and history scholars are pushed to the corner with autonomous institutions like ICHR, CBSE getting saffronised and the government is seeking to control various independent accountability institutions, the NJAC judgement has actually brought a sigh of relief.  Ram Jethmalani has correctly summed up “I think it is a great success for Indian Democracy; the litigating public; the bar and all those who respect honest judges and a clean judicial system.”.

Disclaimer: Views expressed above are the author's own.

Blogger's Profile

Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

Drop a comment

Enter The Code Displayed hereRefresh Image

Previous Comments

This writer, however eminent he may be, he should get his facts right. This bill was introduced in parliament by congress Govt. went to select committee, gone through the process to fulfill all the parameters of democracy and all parties have unanimously passed the bill. Now to blame only BJP and connect it undemocratic Indira’s emergency shows the prejudice and sick mindset of the writer.

It also is funny when this hypocrites writes a blog and says “its atmosphere of fear with freedom of speech under threat” if this was really indeed was the situation, which surely was during his beloved autocratic leader imposed emergency there would have been action but its not the case, this man can go on rampage of bluff but he is allowed to do so this goes to show that there is absolute freedom of speech no matter how ugly and untruthful one is writing.

- Purushottam Sandye, Ponda Goa | 25 th October 2015 22:23


The article discusses a lot of issues in the same go. The issue seems to have been misframed. Under the constitution there is no ambiguity about the independence of judges. The constitution is very clear that the judiciary is dependent as far as appointment of the constitutional courts' judges goes. And it is also very clear that the executive or the legislative has no role to play in the judicial functions of the judiciary. The appointment of judges is not a judicial function at all. It is an executive function.

According to the letter of the constitution, the judiciary is not autonomous its own appointments. And neither is it autonomous in its own removals (Impeachment powers are with the parliament).

How the word "consultation" in Article 124, has been made to mean primacy and exclusive domain of the CJI is no doubt a very creative reading of the law. It is such an extreme position that it is no better than the primacy of the executive. Ambedkar, the genius that he was, wanted to find a middle course, to avoid the extreme of the executive primacy in the appointment of the judges, and to avoid the other extreme of the judiciary having exclusive control in that regard.

Now it has put India in a very unique position in the world. It is the only country where judges can appoint judges. And the manner of appointment is not transparent at all. And we talk of making India a modern democracy, with the youngest demographics in the world. Clearly, not everything adds up.

Interestingly, in the second judges case, which led to the creation of the collegium, one of the main reasons given for the primacy of the CJI in the appointment of judges was that in England the Lord Chancellor has similar powers. Well, even in England, they now have a Judicial Commission for the appointment of judges. Perhaps, we should have updated our positions as well.

- Manish, New Delhi | 25 th October 2015 12:04


Unfortunate that the very same collegium wanted to appoint/elevate Justice Dinakaran

I am certainly not saying politicians should have anything to do with the judicial appointments

It's high time we blamed ourselves for the rot in our society

- DINESH MATHA, Margao | 25 th October 2015 10:19


Related Blogs