Gavel banging

During the marathon debate on the Constitutional validity of the National Judicial Appointments Commission in the Supreme Court, Attorney General Mukul Rohatgi was at his belligerent best as he said there was no coming back for the collegium system for appointment of judges. In somewhat of a dare to the court, Rohatgi said if the court were to strike down the NJAC, it would not result in an automatic revival of the collegium and that the lawmakers would have to go back to the drawing board to draft a fresh law.

It was clear during the debate, stretched over several months including vacation time, that if the government was aggressively defending the new system, the court, too, was not prepared to cede its powers. On October 16, the court struck down the NJAC and ordered a revival of the collegium system, which is often described as a process in which judges appoint judges.

It was a setback to the Narendra Modi government, which had acted with remarkable alacrity, taking up the NJAC bill as soon as it came to power and passing it in Parliament. It also marks a royal snub to the political class, which had shown near-unanimity in passing the NJAC bill, as also the 99th Constitutional Amendment Bill that enabled it.

“The political-executive should not be involved in selection of judges. The judiciary should be kept away from the spoils system that has come to prevail in Indian politics,” the judgment read. The exact point on which the NJAC was struck down was that it dealt a blow to the primacy of the judiciary in selection of judges—an attack on the independence of the judiciary. This rendered the NJAC ultra vires of the Constitution as independence of judiciary constitutes the basic structure of the Constitution.

The NJAC, which was to be a six-member panel chaired by the Chief Justice of India, would have comprised two other senior-most judges of the Supreme Court, the Union law minister and two eminent persons. The court said the veto provision would mean the law minister, together with any one of the two eminent persons, could shoot down a proposal made by the judicial members, thus taking away the primacy of the judiciary from the process. One judge even remarked that the law minister would never allow a gay person to be appointed as judge.

There was a reaction from the government, first somewhat guarded and then quite strident in the form of a blog by Union Finance Minister Arun Jaitley. His retort: Indian democracy cannot be a tyranny of the unelected, and if the elected are undermined, democracy itself would be in danger. “Politician bashing is the key to the judgment…. Politician bashing is akin to the 9pm television programmes,” Jaitley said. He noted that the judgment was passed on the rationale that India’s democracy had to be saved from its elected representatives.

If the court has said that the primacy of the judiciary in appointment of judges had to be preserved, the political class has reminded the judiciary that the power to appoint judges was not theirs to begin with. Abhishek Singhvi of the Congress wrote in a blog: “The first and simple reason why the majority got it wrong is that, even after seven decades of exciting constitutional jurisprudence, no one can point out a single sentence in our venerable constituent assembly debates which sanctifies judicial self-procreation.”

The views of experts on the court-politician face-off are divided. If some are in agreement with the court’s decision, there are others who say that the court ought to have allowed the NJAC to function and could have made changes in it, if needed, to preserve the primacy of the judiciary.

“The court need not have gone into a situation of confrontation with Parliament. It is a matter they could have saved by interpretation. For example, they could have expanded on the eminent persons clause,” said former Supreme Court judge K.T. Thomas.

Critics of the NJAC said the political class was waiting for an opportunity since 1993, when the collegium system came into being, to neutralise it and gain control over the process of appointment of judges.

Supreme Court lawyer Sanjay Hegde said: “The Supreme Court has preferred not to negotiate on the question of independence of judiciary. It feels that judges who are appointed in non-political presence are more likely to be independent.”

It is argued that the government is the biggest litigant and hence it cannot be allowed to have a role in the appointment of judges. Also, leaders of almost all political parties are embroiled in some legal issue or another. “The NJAC would have resulted in the blue-eyed boys of the government getting appointed,” said former Chief Justice V.N. Khare.

The way ahead now appears to be to rework the collegium system, with the court also acknowledging that there are problems with it. “Deserving persons have been ignored wholly for subjective reasons. Social and other national realities were overlooked. Certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised. Selection of patronised or favoured persons was made in blatant violation of the guidelines, resulting in unmerited, if not, bad appointments,” said Justice Kurian Joseph in his judgment.

The government, it is learnt, finds no merit in seeking a review of the court’s decision, and any effort to draft another law would be a long-drawn-out process. Also, the opposition Congress is not playing ball.

“In the light of the changed situation, we have urged and advised the government not to embark on a path of confrontation, which will not be healthy for Indian democracy, but to gracefully accept and correct its own ways and its own functioning,” said Congress leader Anand Sharma.

As Justice J. Chelameswar, the only judge in the five-member bench to approve of the NJAC, put it in his judgment—“Reform that you may preserve”—the way ahead would be to reform the collegium system to make it transparent and accountable.