Will of the people is the constitution, says SC

The Supreme Court on Friday said that it was the constitution of India that represented the will of the people and not parliament which at any given point of time represented the will of the majority and did not enjoy unlimited powers to amend the constitution.

"The will of the people is the constitution while the parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the people", said Justice Adarsh Kumar Goel in his separate reasoning to declare constitution's 99th amendment and the act setting up the National Judicial Appointment Commission  unconstitutional.

The constitution was supreme and even parliament has no unlimited amending power, Justice Goel said as he rejected the government's defence of NJAC, contending that it was passed by the parliament which represented the will of the people, and any interference with it would be undesirable and contrary to the law.

Justice Goel held that judiciary had to be independent of executive as it had to adjudicate disputes between the central and the state governments, between a citizen and the state or between a citizen and a citizen, disputes relating to the powers of parliament and state assemblies, issues of constitutionality or legality in the exercise of executive power and the allegation of malafides even against highest constitutional dignitaries.

Holding that there could be no footprint of executive in judicial appointments, he said: "This requires an impartial and independent judiciary. The judiciary is required to be separate from the executive control. Judiciary has to inspire confidence of the people for its impartiality and competence."

"Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary."

Holding that the judiciary had "apolitical commitment in its functioning", Justice Goel in a poser asked once "independence of judiciary is acknowledged as a basic feature of the Constitution, question is whether power of appointing judges can be delinked from the concept of independence of judiciary or is integral part of it.

"Can the independence of judiciary be maintained even if the appointment of judges is controlled directly or indirectly by the executive?"

"It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the executive, it will certainly affect impartiality of judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded," he said.

Addressing the contention that collegium system had to go as there were deficiencies in its working, Justice Goel, noting "individual failings may never be ruled out in functioning of any system" and "any perceived shortcoming in the working of existing mechanism of appointment of judges cannot by itself justify alteration or damage of the existing scheme once it is held to be part of basic feature".

Noting it was "not necessary to comment upon how good or bad any constitutional authorities have performed in discharge of their duties or how good or bad the judiciary has performed", he said that the limited question for consideration of the court was to identify and retain the basic structure of the constitution in appointment of judges.