While jurisprudence is attributed to the Romans, the French—who insisted on liberté, égalité, fraternité—claim credit for justice. The 18th-century French philosopher Montesquieu, considered the father of the principle of checks and balances in a democracy, wrote in The Spirit of Law: “To prevent this abuse [of power], it is necessary from the very nature of things that power should be a check to power... The principle of democracy is corrupted not only when the spirit of equality is lost, but also when the spirit of extreme equality is taken up.” He argued for the separation of church and state powers to protect democracy from nepotism, despotism and distortion.
His prescription has stood civilisation’s test of time: the legislative branch makes laws, the executive enforces them, and the judiciary interprets them. He emphasised these powers must remain separate, yet interdependent. India seems to be still figuring out the contours of a superstructure facilitating the harmonious working of the three branches independent of each other, yet simultaneously dependent on each other.
As the sordid saga of the alleged cash recovery from Delhi High Court judge Yashwant Varma’s house unfolds, the undeclared Cold War between the executive, legislative and judiciary is out of deep freeze. The scandal has acquired epicedial dimensions for the judiciary. It has become a powerful and legitimate excuse for the political establishment to tame the judiciary, laying the blame on the collegium’s primary right to appoint judges—’Judiciary isn’t meant by the judges, for the judges and of the judges.’
Instead of approaching the scandal célèbre as an ugly aberration, the establishment is in a splenetic scurry to curb the judiciary’s power to choose justices for the higher courts. The 1975 Emergency was the tipping point in this conflict. Ruling politicians were the ones who chose the judges. The chief justice of India was a rubber stamp with just one role: green-light the names finalised by the government. This led to the subversion of human rights and even the supersession of some judges. Ironically, it was the judiciary itself which bestowed these blanket powers.
Since the Constitution provides for only “consultation” with the chief justice for judicial appointments, many legal eagles claimed constitutional concurrence gave undue leverage to the government. The case finally reached the Supreme Court. By then the Emergency was over, but Indira Gandhi was back in power. In 1981, a seven-member bench headed by Chief Justice P N Bhagwati delivered the first verdict in the ‘Three Judges cases’. The Court ruled in S P Gupta that the term “consultation” in Articles 124 and 217 of the Constitution did not mean “concurrence”, and gives the executive primacy in judicial appointments over the CJI, whose view was not binding on the president. According to various news reports and parliamentary debates, Congress governments led by Indira and then Rajiv Gandhi invoked executive power to pack the benches with their nominees.
The champions of independent judiciary didn’t give up. Predictably, it again led to a bitter bagarre between the opposition and the Congress. A nine-member bench chaired by Justice J S Verma, writing the final verdict in the ‘Second Judges case’ in 1993, overruled the first and interpreted consultation as concurrence, and established the collegium system. The judgement excluded the executive from the process of judge selection and gave the CJI, in consultation with two senior-most judges, the final say.
The battle between the judiciary and the executive didn’t end there. The Atal Bihari Vajpayee government flagged the strength of the collegium. It made a presidential reference to the Supreme Court seeking clarifications about the number of collegium members, the role of the government in suggesting names, and whether a judicial review by the government to reject a name suggested by the collegium was legit. A definite and assertive verdict by a nine-member bench led by CJI S P Bharucha in 1998 raised the number of collegium members from three to five, and outright rejected any government role, barring questioning the integrity of the proposed names. As things stand, it is the final law regarding the selection of judges.
For the past three decades, the sarkar and political parties have been unable to digest the idea of a totally insulated judicial system. They feel the system is not transparent since the decisions are made by judges behind closed doors without public disclosure of the criterions or rationale behind selecting or rejecting candidates. This opacity has fuelled allegations of arbitrariness, as seen in 2019 when the collegium’s decision to elevate justices Pradeep Nandrajog and Rajendra Menon was reversed after a member retired. Justices Dinesh Maheshwari and current CJI Sanjiv Khanna were appointed two months later.
The BJP government passed the National Judicial Appointments Commission (NJAC) Act through the 99th constitutional amendment. The NJAC sought to replace the collegium with a six-member panel comprising the CJI, two senior Supreme Court judges, the Union law minister, and two eminent persons selected by a committee including the CJI, the prime minister and the leader of the opposition. This hybrid model aimed to balance judicial independence with executive input, enhancing transparency and accountability. The NJAC promised a broader consultative process: no appointment could proceed if two members objected, ensuring consensus over unilateralism, curbing nepotism and expediting appointments.
However, the SC struck it down in the ‘Fourth Judges case’ (2015) by a 4:1 majority. The majority view was that the NJAC violated the ‘basic structure’ of the Constitution, particularly the principle of judicial independence by granting politicians equal footing in appointments—a perceived threat to judicial autonomy.
If the NJAC’s rejection was a missed opportunity for some, it was a triumph of independence for others. Critics contend the court’s decision reflected an unwillingness to relinquish control by prioritising autonomy over accountability. Yet, the government chose a reconciliatory approach by proposing a revised memorandum of procedure to guide collegium appointments, but disagreements between the two behemoths persist.
Even after eight years, the memorandum is having a long ‘trishanku’ moment. By excluding the executive entirely and giving unfettered power to the judiciary, the constitutional principle of separation of powers seems to be in peril. The government, however, can veto an appointment by delaying to act on the collegium’s recommendations, or rejecting them outright by raising integrity issues.
A balanced solution lies not in dismantling the collegium, but in refining it—or resurrecting a restructured NJAC—to align with democratic principles. Judicial independence must coexist with accountability, ensuring that the selection of judges reflects merit, experience, integrity and public trust. An institutional framework where CJI has the final authority with the executive as a prominent participant is a solution.
As the debate rages on, the stakes are high: the judiciary could lose the very legitimacy it seeks to uphold. Lord Mansfield, an 18th-century British judge who declared “fiat justitia, ruat caelum (let justice be done, though the heavens fall)” had a point. Though colonialism ended seven decades ago, the heavens won’t fall if accord over animosity becomes the bedrock of the judiciary.
prabhuchawla@newindianexpress.com
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