Musings on the Constitution-XLVIII Narasimhan Vijayaraghavan

Musings on the Constitution-XLVIII
Narasimhan Vijayaraghavan

Before we plunge into the piece de resistance or THE judgment that has stood tall among all others, we may cross over by a few decades to the present. Be it the K S Puttaswamy judgment (Right to Privacy) or the unconstitutionalising of the unanimously passed National Judicial Appointments Commission Act, convenient references were made to the Debates in the Constituent Assembly by the Judges to support or justify their conclusions.

Rajya Sabha
One of the primary challenges to the Aadhaar legislation was whether it was a Money Bill under Art.110 of the Constitution to avoid the need for scrutiny by the Rajya Sabha. Despite the majority of The Nine agreeing with the government that it ‘can be construed as a Money Bill”, the issue now stands revived from subsequent pronouncements. (By orders dt. Nov, 15,2019- a 5 Judges’ Bench has referred the Money Bill issue a 7 Judges’ bench for a clear and categorical pronouncement-That is the beauty or ugliness of law- as Justice V R Krishna Iyer put it ,on an earlier occasion, when the same issue never reaches a complete culmination). The judges in the majority- Justice Sikri- authored it, were delighted to flag off the speech of an individual member and the rejection of the amendment proposed to the provision.

RS Members in the Well of the House
“On 20th May 1949, a member of the Constituent Assembly, Ghanshyam Singh Gupta, proposed an amendment in clause (1) of Article 90 to delete the word “only”. He stated that a Bill can be a Money bill even while containing other provisions. Gupta argued:
“This article is a prototype of Section 37 of the Government of India Act which says that a Bill or amendment providing for imposing or increasing a tax or borrowing money, etc. shall not be introduced or moved except on the recommendation of the Governor-General. This means that the whole Bill need not be a money Bill: it may contain other provisions, but if there is any provision about taxation or borrowing, etc. It will come under this Section 37, and the recommendation of the Governor-General is necessary. Now article 90 says that a Bill shall be deemed to be a money Bill if it contains only provisions dealing with the imposition, regulation, etc., of any tax or the borrowing of money, etc. This can mean that if there is a Bill which has other provisions and also a provision about taxation or borrowing etc., it will not become a money Bill. If that is the intention I have nothing to say; but that if that is not the intention I must say the word “only” is dangerous, because if the Bill does all these things and at the same time does something else also it will not be a money Bill. I do not know what the intention of the Drafting Committee is but I think this aspect of the article should be borne in mind.”161 (Emphasis supplied) Another member Naziruddin Ahmad also emphasized on the deletion of the word “only”. The concern of these two members was that the word “only” restricts the scope of a Bill being passed as a Money Bill. Their apprehension was that if a Bill has other provisions which are unrelated to the clauses mentioned in draft Article 90, the Bill would not qualify to be a Money Bill in view of the word “only”. The amendment suggested by these members was listed to be put to vote on a later date. The amendment was rejected when it was put to vote on 8 June 1949. The framers of the Indian Constitution consciously rejected the said amendment.”

Forget not K S Puttaswamy has now escalated the Right to Privacy also as a fundamental right. Contextually, during the Debates in the Assembly, there was reference to this aspect but there was no consensus reached. Right to privacy was neither included as a specific specie of fundamental right nor was it excluded from being one. It was therefore left to the learned judges of the apex court to pronounce on it, in the name and course of interpreting the relevant provisions of Chapter III of the Constitution of India. In Kharak Singh, M P Sharma and Govind cases the question arose and as the Supreme Court was not clear and categorical, in the wake of Aadhaar legislation challenge, a Nine member bench came to be constituted. It is now settled law vide the decision dt.24th Aug, 2017 in Justice K S Puttaswamy vs Union of India that Right to Privacy- the ‘right to be left alone’ as Justice Louis Brandeis famously called it, is a fundament right.

There was, a little earlier, a significant judgment which the Supreme Court was happy to deal with and pronounce, in which the debates were referred to extensively. However, it would seem that neither the Debates mattered nor the provisions, as enacted. The Supreme Court toed a tangential line to uphold their territorial domain in the matter of appointment of judges to higher courts, under the invented Collegium system. Neither the Constitution has envisaged it. Nor any member of the Constituent Assembly spoke of it. No Debate whatsoever. Not a word. Not a syllable or comma or an apostrophe.

In SCAOR vs Union of India on 6th Oct, 1993, Collegium became a reality. It has now come to stay, almost for good, with NJAC being consigned to the dustbin of history vide decision in SCAOR vs Union of India dt.16th Oct, 2015, by a 4:1 majority. Let us leave it there for any further reference may detain us here for ever. In the course of this verdict, the majority made references to the Debates in the context of Independent Judiciary as a Basic Structure of the Constitution and the ‘primacy’ of the Chief Justice of India in the consultative process, yet chose to disregard the Debates and provisions for what they were, as the decision was theirs to make and take.

Now, contextually read that portion of the Debate extracted in the NJAC judgment itself. Nothing is left to the imagination as to where the sympathies of the majority lay notwithstanding what our framers thought, observed, and said in the Constituent Assembly. That would suggest something to the ‘value’ of the Debates, in judicial interpretations.

“It is surprising, that the Chief Justice of India, on account of the position he holds as pater familias of the judicial fraternity, and on account of the serious issues, that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far reaching public interest, was suspected by none other than Dr. B.R. Ambedkar, during the course of the Constituent Assembly debates, when he declined to accept the suggestions made by some Members of the Constituent Assembly, that the selection and appointment of Judges to the higher judiciary should be made with the “concurrence” of the Chief Justice of India, by observing, that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have. And therefore, the Constituent Assembly did not leave it to the individual wisdom of the Chief Justice of India, but required consultation with a plurality of Judges, by including in the consultative process (at the discretion of the President of India), not only Judges of the Supreme Court of India, but also Judges of High Courts (in addition to the mandatory consultation with the Chief Justice of India).”

This is how the majority went on to summarise the findings from the Debates.
“The discussion leading up to the Constituent Assembly Debates and relating to the appointment of judges clearly brings out that: (1) The independence of the judiciary was unflinchingly accepted by all policy and decision makers;(2) The appointment of judges of the Supreme Court and the High Courts was to be through a consultative process between the President and the Chief Justice of India, neither of whom had unfettered discretion in the matter; (3) In any event, the political executive had no role or a very little role to play in the decision-taking process. Notwithstanding this, the political executive did interfere in the appointment process as evidenced by the Memorandum prepared in the Conference of Chief Justices by, inter alia, recommending persons for appointment as judges of the High Court. Resultantly, the appointment of judges to the High Courts was not always on merit and sometimes without the recommendation of the Chief Justice of the High Court;
(4) A constitutional convention existed that the appointment of judges should be made in conformity with the views of the Chief Justice of India (5) The proposal for the appointment of a judge of the Supreme Court or a High Court could originate from the President (although it never did) or the Chief Justice of India and regardless of the origin, it would normally be accepted. However, the possibility of the President giving in to political or party pressures was not outside the realm of imagination. (6) Historically, the Chief Justice of India was always consulted in the matter of appointment of judges, and conventionally his concurrence was always taken regardless of whether a recommendation for appointment originated from the Chief Justice of the High Court or the political executive. It is in this light that the discussion in the Constituent Assembly on the issue of appointment of judges to the Supreme Court and the High Courts deserves to be appreciated. (7) It remained a grey area whether in the appointment of judges, the President was expected to act on his/her own or on the advice of the political executive”

It is on the basis of these findings that the majority concluded that the presence of the Union Law Minister in the selection panel of Eminent persons under NJAC was antithetical to the precept and practice of Independent Judiciary as a Basic Structure of the Constitution- as affirmed in Keshavananda Bharati verdict. Let the reader judge the judges on their understanding of what our framers of the Constitution left for us. That takes us to where we anyway ought to go Musing.

(Author is practising advocate in the Madras High Court)