A powerful two-term Chief Minister of a central Indian State was seen obsequiously[ub'see-kwee-us-lee(flattering,चापलूसी भरे ढंग से)] bowing and scraping(showing excessive politeness,अधिक विनम्रता दिखाना) and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous[i'nók-yoo-us(innocent,सीधा सादा)] High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing[kaw'taw(flattering,चापलूसी)] to someone who only a few months prior, as an undistinguished government pleader[plee-du(lawyer,वकील)], would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.
The story may be apocryphal[u'pó-kru-fu(questionable,मनगढ़ंत)], as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate[i'ma-kyu-lut(clean,साफ)] conception, unassisted by other organs of the state.
Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus[kun'sen-sus(agree,सहमति)]. However, the judicial voice was often neither dominant nor decisive[di'sI-siv(crucial,निर्णायक)]. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged[in'dúl(involved,लिप्त होना)] in rank favouritism. The situation prompted[próm(p)t(inspire,प्रेरित)] Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”
Quiet revolution
It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.
Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur[di'mur(objection,आपत्ति)] in the appointment if cogent[kow-junt(powerful,प्रभावशाली)] grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite[i'leet(specific,विशिष्ट)]. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.
In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”
The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.
Unstable structure
Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied[stI-mee(block,obstruct,बाधित)], when old rivalries[rI-vul-ree(competition,प्रतिद्वंदिता)] between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath[rath(anger,गुस्सा)] could wreck[rek(smash,तोडना)] a hitherto[hi-dhu'too(till now,अब तक)] promising judicial career.
The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth[shi-bu-luth(slogan,नारा)]. Equally, while a reputation for corruption was a disqualifier, lesser evils like sloth[slowth(laziness,आलस्य)] often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.
But the collegium also ensured that judges were not beholden[bi'hówl-d(u)n(obligated,बाध्य)] to any politician. A bold judgment could end up unseating the most powerful of politicians. Politicians of all hues yearned[yurn(desire,इच्छित)] for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.
Towards the end of the UPA regime[rey'zheem(rule,शाशन)], the government sought to tame[teym(make less strong,कमज़ोर करना)] judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept[in'ept(tactless,अकुशल)] parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.
Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously(consensus) passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate[a-di-kwut(enough,पर्याप्त)] representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.
The four judgments of the majority have reasserted[,ree-u'surt(strengthen,दृढपूर्वक)] judicial independence with its autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny[skroo-t(u-)nee(examine,जाँच)]. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.
Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding[broo-ding(thoughtful,विचारमग्न)] spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”
The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary[dreer-ee(dull,नीरस)] desert sands of dead habit, but into ever widening thought and action.
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