In yet another landmark judgement, on October 16 the Supreme Court struck down the legislation for selecting judges by declaring as “unconstitutiol” the 99th constitutiol amendment that had facilitated the formation of the tiol Judicial Appointments Commission (NJAC) for replacing the existing “collegium” system of appointing judges to the higher judiciary. A five-judge bench of the apex court ruled that the collegium system would revive automatically. This restores to the judiciary the upper hand in the appointment and transfer of judges. The verdict was delivered on a batch of appeals filed by the Supreme Court Advocates-on-Record Association and several individuals and organizations that questioned the constitutiol validity of the NJAC. The collegium consists of only judges, whereas the NJAC stipulated a role for the Union Law Minister and two eminent persons. The six-member NJAC was also armed with a veto power, as opposition from any of the two members would have derailed an appointment. And since the eminent persons would have been picked by a panel on which the political executive would have had the upper hand, some concern had been expressed that the Law Minister, along with two pliable “eminent persons” could stall or reject a me agreed upon by the three remaining members of the NJAC (the senior-most judges of the Supreme Court). The majority view of the five-judge bench last Friday was that such possibility would undermine the independence of the higher judiciary. One of the five judges did uphold the validity of the Constitution amendment, but added that “in view of the majority decision, I do not see any useful purpose in examining the constitutiolity” of the NJAC Act. However, the revival of the collegium system does not imply that it is insulated from the aberrations that allegedly would have affected the NJAC. In fact, the Supreme Court bench admitted the need for improving the collegium system—described by the lone judge as “absolutely opaque”—and invited suggestions from the government and petitioners.
Understandably, the Supreme Court verdict has completely upset the plans that the government had of freeing the appointment of judges to the Supreme Court and high courts from the complete control of the Supreme Court and letting the political executive also to have a hand in the selection of judges for the higher judiciary. The rendra Modi government said that the verdict was a “setback to parliamentary sovereignty”. “While holding very dearly the principle of independence of the judiciary, I regret to say that parliamentary sovereignty has received a setback today. Questions have been raised on parliamentary sovereignty,” said Telecom Minister Ravi Shankar Prasad, who had piloted the NJAC Bill in Parliament as the then Law Minister. Prasad said the government would decide the future course of action after reading the 1,030-page judgement. Actually, the government now has few options, especially because of the sense of mistrust and acrimony that has a grip over the polity now. The Congress which had initiated the NJAC plan (but without the veto power), lost no time in blaming the government and ruled out any cooperation in the event of the NDA government planning to take the judiciary head on.
What is significant is that the Supreme Court bench should have commented not merely on the constitutiolity and legality of the controversial issue involved, but also on the perception that fascist tendencies were emerging in the country. The court quoted BJP veteran LK Advani who had said that “forces that would crush democracy, were now stronger than ever before” in the post-Emergency era.
The striking down of the NJAC plan of the government by the Supreme Court has left the political executive with very little means of getting the selection of judges for the higher judiciary out of the total control of the Supreme Court as it had planned to do. The only tiny little window that is open to the government now is to suggest to the Supreme Court ways of improving and refining the functioning of the collegium system that has revived.