The primacy of the judiciary in making judicial appointments has been reasserted; judicial independence has been safeguarded and the political executive’s attempt to legislate into being a new system to constitute the superior judiciary has been scuppered. This is how judges, advocates, and the political class will understand the landmark decision of a five-judge Bench of the Supreme Court invalidating the Constitution amendment and the law seeking to establish a National Judicial Appointments Commission. Is that all there is to it? In its implication, it is may seem like just another mass of legal verbiage, citing law, precedent and jurisprudence to say in different words what has been enunciated in four judgments – Samsher Singh (1974),Sankalchand Himatlal Sheth (1977), the Second Judges’ case (1993) and the Third Judges’ case (1998) – of the Supreme Court Apex Court.
The current discourse is most likely to be seen by the average citizen — a concerned and knowledgeable one, as distinct from an apathetic or cynical layman — as a momentous indication of a vexing conflict between parliamentary sovereignty and judicial primacy. It genders in the citizen a fear that what is at play is an irreconcilable set of binaries in the exercise of state power. The bewildering truth behind the government’s move to put in place a new system of judicial appointments to undo the inadequacies of the present collegium system is that both the Union of India and the Supreme Court are right; that both the majority and the lone dissenting judge speak words that ring true.
This understanding flows from the intensely political nature of the discourse , for this is not a mere academic debate on the ideal appointments process. An outstanding feature of the separate opinions in this case is that they are overtly political, self-consciously candid, and unflinching when it comes to speaking about the political realities of the judiciary-executive interplay in India.On the political executive, Justice Jagdish Singh Khehar is clear that a system of spoils of office has been in place, under both the UPA and NDA regimes. Beginning with governors and heads of various institutions, political favourites are appointed without shame or reticence. On the judiciary, although none is named, there is tacit acceptance that whenever judicial misdemeanour is referred to, it is done with the knowledge of who is being talked about. Judges appointed without merit, Chief Justices violating the appointments procedure, the passing of questionable orders and plain instances of favouring parties, including convicted film stars and politicians, are merrily referred to, though there is no aspersion sought to be cast on the judicial decisions concerned.
Citizen disempowered
For the citizen, already inured to the reality that politics casts a shadow on all walks of life, this acknowledgement of the fallibility of judges, especially finding expression in Justice J. Chelameswar’s admirable introspection on behalf of his fraternity, is likely to aggravate the sense of being disempowered in the larger scheme of things. Basic rights, already seen as being given or denied by power-wielding state representatives based on caste, communal and gender considerations, rights that flow from the charity and sufferance of political representatives, have now been shown also to be rights that they cannot always expect to be defended or upheld by courts, manned by possibly compromised judges. The citizen seems to be a frail person surrounded by bullies, and if she is unharmed, she only has providence and good fortune to thank.
What does the citizen do when judges say that the present system has not always been fair and improvements are necessary? How does one react to the most far-reaching legislative effort to undo such a system, collapsing under judicial scrutiny, for the sole reason that the political executive crafted a law that failed to secure judicial independence? The executive says the judiciary is self-serving in arrogating to itself the entire appointments process. The judges say they are far less than perfect, but the remedy is not in placing their fate in the hands of untrustworthy politicians. Justice Khehar says civil society is not currently strong enough to act as a restraint on the executive misusing its appointing power. There is a sinking feeling that there is no role for the people in this clash of titans between the political class — whose corruption is obvious but cannot be brought down except with the help of the judicial branch — and a judicial hierarchy that no citizen will dare to question.
Is taking sides with either the judiciary or the government the only option? Is there something more that can be done? Someone has to say that be it legislative or judicial work, a cavalier approach based on an imagined sense of the rightness of their own case is not enough. Wider consultations are necessary. The government ought to have spoken to many sections of society to propose a system that will not merely seek to tilt the balance in favour of the executive. The court, too, should have tried to read down the provisions, possibly by limiting the role of the “eminent persons” on the NJAC or laying down cautionary principles for its functioning instead of quashing it wholesale. The proposed hearing on ways to improve the functioning of the collegium system may indeed be a way out. However, it is not as good as effective legislation. It will still be judge-made law. The very candour that most impresses us in the present judgment may work against the universal acceptability of the final outcome. But, who will speak this truth to judicial power?
