The Supreme Court has struck down the 99th Constitutional Amendment constituting the National Judicial Appointments Commission (NJAC) as unconstitutional and infringing on the independence of the judiciary which is a basic feature of the Constitution of India. There are many, particularly in the judicial fraternity, who would be quick to celebrate the verdict as vindication of the independence of the judiciary. But the issue is not as simple as the independence of the judiciary vs a prowling executive which was undoubtedly the case in the 1970s. There is a logical and evolutionary background to the NJAC and unless that is fully understood, it cannot be said with reasonable clarity whether yesterday’s verdict promotes or undermines judicial independence.
The NJAC is the latest outcome of a long process of judiciary-executive interface, more often uncomfortable, for the last four decades and more. The story goes back to the split in the Indian National Congress on ideological grounds with the then ruling faction led by Indira Gandhi going in for nationalisation of banks and abolition of privy purses in the year 1969 which were struck down by the Supreme Court. This was how the judiciary vs executive tussle started with the Indira Gandhi government even talking of committed judiciary. All hell broke loose when within hours after the Supreme Court delivered the Keshavananda Bharati case verdict which ruled that Parliament cannot alter or abridge the basic structure of the Constitution, the Indira Gandhi government superseded the three judges who decided the case which went against the government’s views. This was followed by mass transfer of judges during the Emergency in 1976, a second supersession of judges in 1977 and continuing interference in the judiciary in the 1980s on the premise that the executive had primacy in the appointment and transfer of judges. This was challenged in the first judges case. The Supreme Court capitulated and handed ultimate power to the government with an apology of a consultation with the Chief Justice who could be overruled. This led to the second judges case when P V Narasimha Rao was the Prime Minister and in 1993, the Constitution bench of the Supreme Court, headed by Justice J S Verma, reversed the capitulating judgment and made the judiciary supreme by making the views of the Chief Justice final in judicial appointments and transfer, thus swinging the judiciary to the other extreme. The collegium system, which was annulled by the NJAC but reinstated by the ruling of yesterday, was introduced by the second judges case.
When the statesmanly Atal Behari Vajpayee was the Prime Minister, his government, saying that it was not seeking a review of the second judges case, sought the opinion of the Supreme Court on how to make the collegium system functional. The judiciary’s answer was in the form of a nine-point guideline for the collegium system that has been functioning since then. But the quality of judicial appointments and huge backlog of cases — reportedly 45 lakh cases in High Courts — had made many feel that the collegium system needed reform. Thus was born the NJAC idea. The NJAC was structured as a transparent institution by an amendment to the Constitution with the Chief Justice as its chairman and three of its six members coming from the judiciary, the law minister being the fourth and two members appointed by the government in consultation with the opposition. The NJAC became a constitutional body whose structure could not be altered except by a Constitutional amendment. This is what has been struck down by the Supreme Court.
It does not need a seer to say that judicial appointments must satisfy three fundamental conditions: one, it has to be the joint function of the judiciary and the executive; two, it has to be transparent; and three, there has to be judicial accountability. On the executive-judiciary joint work in appointments, Justice J S Verma, who delivered the judgment in the second judges case, himself said later: “my 1993 judgment has been both misunderstood and misused. Therefore, some kind of rethink is required... my judgment says that the appointment process of High Court and Supreme Court judges is basically a joint or participatory exercise between the executive and the judiciary with both taking part in it”. This is precisely what the NJAC endeavoured to achieve. On transparency, none could assert that the collegium was anywhere near this ideal. Recognising this deficit, yesterday’s judgment of the Supreme Court itself says that it would hear all on how to make the collegium work more effectively and efficiently. On accountability, the collegium had no clue as to how to make judicial personnel accountable. S H Kapadia, when he was the Chief Justice, had requested the government to balance accountability with judicial independence. The NJAC was definitely a step in the right direction. It is unfortunate that the Supreme Court has preferred an informal system instead of a formal judicial system for judicial appointments and supervision. The judiciary must introspect. In the 1980s, the executive had very little credibility. Today, the very credibility gap the executive suffers from has hit the judiciary also. A former and respected judge of the Supreme Court, Justice R V Raveendran, said in the Justice J K Mathur memorial lecture that inconsistent judgments and anomalies have eroded the faith of the common man in the judiciary. Today, even the judiciary is not above the charge of corruption. Given the challenges, the informal collegium system is inadequate. A law is definitely called for. The sooner the judiciary realises this, the better for the Indian judiciary.