In October 2015, the Supreme Court struck down the 99th Constitutional Amendment and the resultant National Judicial Appointments Commission (NJAC) Act, 2015 as being unconstitutional on the ground that it violated the basic structure of the Constitution by undermining the judiciary.
A careful reading of the verdict left one with the distinct impression that the veto power vested on any two members of the NJAC irked their lordships no end. They saw in it an affront to the apex court. And they made no bones about it.
The commission was to comprise the chief justice of India, two senior judges of the Supreme Court in the pecking order of seniority, the Union law minister and two eminent persons to be nominated by the joint efforts of the Union law minister, the leader of the opposition in the Lok Sabha and the chief justice of the Supreme Court of India.
To be sure, the fear harboured by their lordships was genuine - the candidate proposed by the judicial members might be rejected just out of spite by the non-judicial members, especially with the so-called eminent members playing footsie or ball with the government of the day.
What the apex court however did was to unfortunately throw the baby with the bathwater - reject the whole law lock, stock and barrel instead of striking down the offending portion. It showed to the discerning critics that the SC had struck down the NJAC Act more out of pique than on the ground that it militated against the basic structure of the Constitution, which is inviolate and sacrosanct.
|Justice Chelameswar of the apex court is raising the banner of revolt against the collegium system. (Image: PTI)|
Indeed it was apparent that the reason trotted out by the apex court for the rejection of the NJAC was ostensible. A fig leaf of unconstitutionality was used to throw out an entirely well meaning law - the sharing of power in the manner of appointment was equated with the loftier concept of judicial independence itself.
The truth was the SC considered it infra dig to rub shoulders with non-judicial members of the NJAC.
NJAC, thus, was stillborn and the government gave up and threw in the towel without trying to revive the infant, perhaps fearing adverse public opinion and to keep the SC in good humour.
While the baby cannot be revived now as it has been given the quietus, the government can try to produce another baby akin to the earlier one, sans the invidious veto power to any two members of the NJAC that rankled their lordships.
The matter has been lent urgency and relevance now that Justice Chelameswar of the apex court is raising the banner of revolt against the collegium system that makes appointments to high courts and Supreme Court the sole preserve of the judges of the Supreme Court. Indeed, collegium has not even been contemplated by the Constitution, much less countenanced by it.
The SC has been using it for well over two decades now after glibly equating the word "consultation" with "concurrence". The Constitution contemplates appointment of judges in consultation with the SC, but the SC says what was contemplated was concurrence, and hence, the collegium. Touché!
To be sure, Justice Chelameswar has not debunked the collegium system; he has only been boycotting it on the ground that its proceedings are not transparent. Nevertheless, the unseemly battle within has clearly embarrassed the judiciary.
It is time for the central government to strike when the iron is hot. Some may call this a euphemism and choose to give it a less noble epithet - fishing in troubled waters. But what the heck, act the government must.
In the USA, the senate committee interviews potential Supreme Court judges in full public view and appoints them if found suitable. Our judges too must, with due respect, come down off their high horses and agree to the NJAC dispensation.
If Parliament can have a major role in the impeachment of judges, there is no reason why it should be kept out of the loop in the matter of appointment of judges through its executive arm.
Anniversary is always the apt time to introspect and act. The government must do so in the run up to the first anniversary of the stillborn NJAC.