Illegal squatters on public land do not move out unless given alternative sites. Possession being the nine points of the law, nobody gives up what he has acquired without putting up a huge fight. So, one should not be surprised at the apex court verdict in the judges’ case. The rejection of the National Judicial Appointments Commission for the higher judiciary by a five-member Constitutional bench of the Supreme Court is not the end of the matter. The unanimous verdict might have revived the collegium system of appointments to various High Courts and the Supreme Court, but it is unlikely that the political executive will treat the issue as settled. It is because when the apex court, through an order, ended the primacy of the executive some two decades ago, the force of public opinion was behind it.
Now, two decades on, things have changed. If the political class as a whole has come for criticism for its numerous acts of omission and commission, in the intervening two decades the judiciary too has lost much of its sheen. If the executive had appointed quite a few undesirable persons as judges, there have been question marks about the appointments by the collegium as well. Neither the old system nor the current one is perfect. That is why the proposed NJAC was considered by independent observers a good via-media to improve the appointment process. Judges appointing judges is not the best system. But in the end it became a turf war, with the judges unwilling to share power with ‘outsiders.’ It was not as if the NJAC, as proposed by the 99th amendment of the Constitution and endorsed by a majority of the State legislatures, had sought to cut out the judges from the appointment process. No. The Chief Justice of India and two senior-most SC judges would have still sat on the NJAC along with two eminent persons and the incumbent law minister of the country. The two eminent persons were to be selected by a committee of the PM, the CJI and the leader of the Opposition or that of the largest opposition party in the Lok Sabha. Broad-basing the judges’ selection process thus would have instilled confidence in the judiciary. But the five-member bench would have nothing of it, rejecting the idea of NJAC outright, though as a salve they said they were open to suggestions to improve the old collegium system. One of the five judges did not hold the 99th constitutional amendment null and void though he too rejected the NJAC.
Notably, the amendment was passed unanimously by Parliament and approved by twenty State legislatures. The bipartisan support indicates a fresh attempt by the executive to assert the will of the people. For the truth is that for well over two decades, under the same statute quoting which the judiciary had appropriated the right to appoint judges, the executive had enjoyed an upper hand. Invoking the basic character of the Constitution now would mean that pre-collegium appointments were ultra vires. The short point is that a compromise whereby independent inputs are available at the time of judges’ selection ought not to be rejected merely because judges had come to enjoy monopoly over such appointments. Peer pressure might have been a legitimate concern for judges as well while writing the order in this case. But reform of the judiciary cannot wait any longer. Admittedly, if there were questionable appointments in the pre-collegium days there are quite a few under the collegium system as well. Therefore, the need to find a mechanism whereby the process of appointments can be improved to enhance the prestige of the judiciary must receive utmost priority. By asserting its exclusive right to make these appointments, the highest court in the land only opens itself to outside pressures. These are set to grow as the creaky judicial system, groaning under the weight of tens of millions of pending cases, fails to meet the expectations of harassed and frustrated litigants. The middle ground on appointments must be found.
