With the Supreme Court striking down the tiol Judicial Appointments Commission (NJAC) and the 99th Constitution Amendment as unconstitutiol, all eyes are now upon the Central government. Will it go for a showdown with the Judiciary by re-ecting a fresh constitutiol amendment? For that, it will require two-thirds majority in both Houses of Parliament, and ratification by at least half the State Assemblies. That will be a long process, and it is doubtful whether the Congress will play ball. Despite voting for the NJAC Act when the NDA government piloted the bill in Parliament, the Congress has now made a U-turn by saying that the constitutiol amendment pushed by the NDA ‘posed a threat to judicial independence’. It has gleefully commented that the apex court verdict ‘implicitly reflects lack of confidence in the government which has eroded institutiol autonomy and constitutiol safeguards over the last 17 months’. So the Central government may seek review of the verdict, but it will come up before the same five-member constitutiol bench, while its earlier plea for to be heard by a larger bench has already been rejected. Some legal experts believe that with the apex court set to discuss on November 3 about strengthening the present collegium system of appointing judges, the Central government can push for equal role of the Executive in such appointments.
The collegium system had long been criticised as working like a guild in opaque manner in which judges appoint judges, a system supposedly followed by almost no other country in the world. In the 4-1 majority decision by the Supreme Court bench, Justice J Chelameshwar struck a sharp dissenting note, calling upon the Judiciary to ‘reform that you may preserve’. Strongly critical of the tendency of the Judiciary to arrogate absolute power to itself in the matter of appointing judges, he observed: ‘Proceedings of the collegium were absolutely opaque and iccessible both to public and history, barring occasiol leaks’. In this context, he referred to earlier criticism about consensus within the collegium sometimes resolved through trade-offs, resulting in dubious appointments with disastrous consequences for litigants and credibility of the judicial system, apart from ‘growing sycophancy and lobbying within the system’. The other four judges however differed, maintaining that though all is not well with the collegium system, the time is ripe to improve the 21-year-old system of judicial appointments. Though not sanctioned under the Constitution, the Supreme Court had put in place the collegium system in 1993 to appoint judges to the Supreme Court and state High Courts on the basis of three of its own rulings. Till then, the system of appointing judges to various courts technically called for consultation with the Chief Justice of India, but it was the government that actually had the last word. Article 124 (2) of the constitution had mandated that every judge of the Supreme Court shall be appointed by the President after consultation with such of the judges of the apex court and the high courts as he may ‘deem necessary for the purpose’, with the rider that ‘the Chief Justice of India shall always be consulted.’
It was this provision that the collegium system had put to an end, with the Chief Justice of India given primacy in judicial appointments and the President virtually reduced to an observer. The Central government tried to put the Executive back into the scheme of things through the NJAC with its six members consisting of the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two ‘eminent persons’. These eminent persons were in turn to be nomited for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. What the Supreme Court found objectioble about this arrangement was the ‘veto power’ given to the ‘two eminent persons’ to block the appointment of any judge to the higher courts. This was considered a major lacu in the amended law, ebling the Executive to stonewall the Chief Justice and other two judges in the NJAC through the backdoor. ‘It is also difficult to appreciate the wisdom of Parliament, to introduce two lay persons, in the process of selection and appointment of Judges to the higher judiciary, and to simultaneously vest with them a power of veto,’ the apex court bench has now held. With the Executive being the major litigant in the country, the Judiciary has thus kept with itself the fil say in the appointment of judges. It will have to tread carefully though as the Central government biding its time — may putting the collegium under scanner by probing its decisions and raising queries about corruption among judges. A huge trust deficit between the Executive and the Judiciary is clearly emerging, which is unfortute and needs to be addressed soon in the interest of good governce in the country.