* Since the time of writing, the Supreme Court has delivered its verdict, striking down the NJAC Act as "unconstitutional".
Today, the Supreme Court will pronounce a historic verdict on the writ petitions challenging the constitutional validity of the Constitution (Ninety Ninth Amendment) Act, 2014 establishing the National Judicial Appointments Commission (124 A). The NJAC Act sought to replace the 22-year-old collegium system which was responsible for the appointment of judges in the Supreme Court and high courts. While the idea of a constitutional commission was a noble one, it was also fraught with questions of judicial independence, the hallmark of rule of law and separation of powers.
The collegium system for appointment of judges was born in 1993 with the decision in Supreme Court Advocates-on-Record Association vs Union of India (more commonly known as the "Second Judges Case"). The Second Judges Case had to interpret the term "consultation" embedded in the text of Article 124 of the Constitution and read it as "concurrence". Article 124 required that every judge of the Supreme Court be appointed by the President by warrant under his hand and seal after "consultation" with such of the judges of the Supreme Court and high courts as the President may deem necessary for the purpose. The collegium consists of five of the senior-most judges of the Supreme Court. What, therefore, happens in the case of a deadlock resulted by a consultation, that is, where one party needs to have a decisive say? The Supreme Court asserted that consultation was to be interpreted as concurrence, which gave strength to the fact that the primacy in this decision making process would rest with the judiciary. The 99th Amendment creating the provision for a constitutional commission to appoint judges in the higher judiciary removes the basis of the Second Judges Case, on the argument that the conciliation-concurrence leap was a textual one. In other words, the NJAC sought to repeal the collegium system.
"Judicial independence ought not to be abrogated by anyone, not even by the judiciary itself. "
It is true that the collegium system has several flaws, primarily in the lack of transparency in judicial appointments resulting in closed door appointments through a perverse exploitation of the kinship cycle of a dynastic legal profession. However, removing the collegium with a commission with disproportionate power to the CJI hits at the heart of judicial independence and is an excellent example of throwing the baby out with the bath water. With this foregrounding, the NJAC was challenged and the question of judicial independence flowing from the basic structure of the Constitution came into relief.
Therefore, today, when the Supreme Court pronounces its judgment on judicial appointments by looking at the validity of the NJAC, much is at stake. Judicial independence ought not to be abrogated by anyone, not even by the judiciary itself. It must be remembered that the judiciary's tussle with the legislature and executive has had a long history and almost half of the first 45 amendments were aimed at clipping the wings of judiciary. Executive dominance immediately prior to and during the Emergency had left the Constitution, specifically the judiciary , "defaced and defiled", to use the language of Nani Palkhivala.
Justice Bhagwati had said "sorry" and admitted his "mistake" in the ADM Jabalpur case when the Supreme Court surrendered to an absolutist government in 1976. He said sorry too late while the judicial institution crumbled and perished. While the SC tried to redeem itself in the 80s, here is hoping that the hard earned lesson has stayed with the court somewhere even in these ghastly times and that while pronouncing the NJAC judgment, it stands up and resists the governmental encroachment. But that's only a relentless hope speaking. Dear Supreme Court, please protect your territory.
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