Why NJAC verdict has greatness thrust upon itself
Some judgments are born great, some achieve greatness and some have greatness thrust upon. The Justice Kehar-led judgment in the National Judicial Appointments Commission (NJAC) case falls in the last category. This judgment is an event. The event is more significant than the contents of the judgments themselves which are far from satisfactory.
Let us first read the real politik. No regime in power at the Centre in India has ever liked an independent judiciary. Nehru thought they had stolen the Constitution and stood in the way of agrarian reform. Mrs Gandhi wanted "committed judges" and felt that they were anti-poor; and most importantly, anti-her. She wanted her own judges; and her durbar was open to judges who wanted appointments.
On the back foot
In succession, her law ministers Shiv Shankar and Bharadwaj put the judiciary on the back foot to insist on their choices and criteria for judgeship.
A long line of great high court judges were excluded from the Supreme Court. We can also talk of "Left" and "Right" wing judges. Three judges appointed on the nod of PN Haksar and Mohan Kumaramangalam dominated the post-Emergency court.
Krishna Iyer, Bhagwati and Chandrachud - the last two capitulated during the Emergency but revived their status. They secured socioeconomic goals of the Constitution.
But why did the judges rebel in 1982, 1993 and 1998 to take over the appointments? This is crucial to our understanding. Law ministers like Bharadwaj were brokering deals on the appointment of high court and Supreme Court judges. The pressure was on. In 1982, the judges simply wanted their participatory role to be weightier (first appointments case). But the 1980s were unpredictable days for judicial appointments.
The pressure increased. In 1993, the judges took over the power of appointments claiming primacy (second appointments case). The word consultation of judges in the Constitution's appointment provisions was read as consent. The 1998 opinion had the background of a political farce. The purpose of the presidential reference to re-examine the issue was to ensure that Chief Justice Punchhi would not make judicial appointments - a view shared by some of his judicial colleagues. He was cornered.
Taking shape
The 1998 system took the shape of a more rigid collegium - with seniority and a little bit of merit being engrafted. The year 1998 left the judges heady with power (third appointments case). Justice Kripal ensured that his Delhi colleagues were disproportionately represented in the Supreme Court. Justice Khare influenced Allahabad appointments on a caste (kayastha) basis. Orissa judges, Pattnaik and Passayat, conspired to delay a distinguished judges' appointment. In the past few years collegium appointments have been awful; and the Supreme Court judges flaunt their power with impatience - including perforce, Kehar himself.
It is with this context that the new debate began: collegiums (judges) vs commission (judges and others). Politically the "collegium" was portrayed as incompetent and whimsical.
The "commission" (NJAC) seemed a pathway to the future. Politicians were convinced that judges breeding themselves was wrong. The constitution's 99th Amendment thinned the collegium to six, including chief justice of India (CJI), two Supreme Court judges, the law minister and two eminent persons, (appointed by the PM, CJI and Leader of Opposition) of which one had to be from the SC, ST, OBC, minorities or a woman.
Something was terribly wrong with this. The NJAC had six members. A 3:3 deadlock cannot be resolved. In appointing the two eminent persons, politicians have a 2:1 edge. The "eminence" of an eminent person may well be political, as indeed, it is angled to be. If one judge is weaned over, the equation may change. If judges wanted to persuade someone to come over to them, they would to "pow-wow" , with the law minister or one or two eminent persons to whom they would be obligated. The NJAC was an invitation to politicise appointments with compromises and patronage.
Non-starter
The 99th amendment was a non-starter. If the amendment was bad, so was the statute. It is important for lay persons to understand the real politik. The judgments are collectively over a thousand pages long. They are boring. The judgment of Justice Kehar is a travesty in excess. Where do we go from here? For politicians it is a question of mustering a two-third majority with ratification by half the states. The judiciary has to create a system with openness, transparency. Much as may trust judges to defend the rule of law, they are temperamental with preferences. To them we say with Ezra Pound: "Pull down thy vanity... Thy vanity down, I say". And, let's get on with it.