By upholding the supremacy of a judicial élite to determine the appointment of judges to the high courts and apex court while simultaneously inviting suggestions to improve the impugned collegium system, the Supreme Court has admitted that its procedure is flawed. The fact that the learned judges were adamant to retain powers usurped by judicial overreach, a process questioned by the legal fraternity itself, has caused deep disquiet in the nation. Even those pleased that the BJP-led government’s first constitutional amendment has been upturned are disturbed at the unexpected development.  

Four of the five judges on the bench (Justices JS Khehar, MB Lokur, Kurian Joseph and AK Goel) opined that the National Judicial Appointments Commission (NJAC) violates the basic structure of the Constitution of India. This is judicial fiction, as pointed out by Justice KT Thomas (retd), Prof Upendra Baxi, and others.

The Constitution upholds separation of powers between the executive, legislature and judiciary. The courts administer justice as per law, and interpret the law, when necessary. Nowhere are they intended to assume the power to appoint ‘chosen ones’ as judges through an opaque system that, since 1993, has caused deep resentment within the ranks of the judiciary itself. Hence, whatever tweaking the Supreme Court accepts today, the stage has been set for future confrontation.

The Centre’s law officers must answer for this failure. Yet, it must be said that the NJAC Act was flawed as it failed to reassert the pre-1993 supremacy of the executive in appointing judges. Its composition – six members comprising the Chief Justice of India, his two senior-most colleagues, the Law Minister, and ‘two eminent persons’ jointly selected by the Prime Minister, the Leader of Opposition and the CJI – is weighted against the government of the day. Despite this, the judiciary could not tolerate non-judges in its charmed circle!

The ‘eminent persons’ clause is so flawed that one is grateful the Government lost this round so it can fight another day. It is the handiwork of unseen forces that posited an unnecessary body called Lokpal as the panacea for all corruption, until closer scrutiny exposed it as a ‘trojan’ that could take over the government by covertly controlling each and every politician and civil servant. The original Lokpal draft – amended by Parliament, when it should have been dropped after every Ministry/Department began creating public redress systems – was a coloured revolution via civil society (this writer unmasked its totalitarian provisions in these columns). The game was exposed with the insistence on Ford Foundation-funded Magsaysay Award winners as the main pool from which Lokpal members would be drawn.

Since independence, our West-centric secular elites have occupied the commanding heights in all fields, including the ‘opposition space’. The Congress presided over this charade – recall Mr Nehru’s tolerance of Mridula Sarabhai’s advocacy of Sheikh Abdullah’s shenanigans till they could no longer be ignored – because it kept the majority disempowered and confused.

The Second Judges Case and the now scuttled 99th Amendment and NJAC Act are part of this paradigm of denigrating institutions (read elected government) and ruling India via personalities inspired (and feted) by the West. Their power grew as coalitions of varying stability followed the 1989 election in which the Rajiv Gandhi-led Congress lost power. This changed in May 2014, when it was no longer politically acceptable to build careers on public funds while denigrating the nation’s civilisational ethos and majority community. The spate of eminences currently returning State honours is a last ditch effort to delegitimise the first majority government, backed by popular will, in 35 years.

In 1993, political vulnerability enabled Justice JS Verma to lead the Supreme Court to assume the power to appoint judges. It went unchallenged because the polity was too weak, especially after the demolition of the Babri structure in December 1992. Mr PV Narasimha Rao was constantly harassed by loyalists of Mrs Sonia Gandhi and could not give the matter the attention it deserved; nor could he join hands with the BJP to rectify the problem. He tried to buy peace by virtually handing over the execution of government social sector schemes to the NGO brigade. These massive outlays of thousands of crores have grown exponentially in subsequent years, and almost exclusively cornered by the leftist-secularist brigade.

The Supreme Court collegium is a virtual NGO; it spurns legitimate government control. It received discreet international approval because it diminished elected government. Interestingly, as chairperson of the National Human Rights Commission, Justice JS Verma refused to join the Centre’s committee to decide India’s approach to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, at Durban, South Africa, in 2001. Instead, he organised a seminar to ascertain public (read left-secular) opinion on whether the caste system should be included as “racial discrimination” and the country humiliated by inviting external intervention in its internal affairs.

Ultimately, the Vajpayee Government defeated this mischief with help from China, South Korea, and others. But those who favoured equating caste with race included senior advocates Fali Nariman, Shanti Bhushan and Rajeev Dhawan; former chief justice of the Delhi High Court Rajinder Sachar; senior journalist Kuldip Nayyar; social activist Swami Agnivesh; film script writer Javed Akhtar, and All India Christian Council secretary general John Dayal.

Unsurprisingly, when the NJAC was challenged before the Supreme Court, Mr Fali Nariman asserted that the “framers of the Constitution had never intended to give the power of appointment of judges to the superior judiciary to the executive.” He was supported by senior advocates Anil Divan, Arvind Datar, Ram Jethmalani, and Prashant Bhushan. The appointment of Mr Rajeev Dhawan as amicus curiae by the court (he said, “The collegium system was working perfectly...”) suggests the learned judges may have made up their minds about how the case would be judged. The arguments of senior counsel supporting the NJAC, viz., Dushyant Dave, Harish Salve, TR Andhyarujina, K Parasaran, Attorney General Mukul Rohatgi and Solicitor General Ranjit Kumar, fell on deaf ears.

The collegium system was mainly the handiwork of Justice JS Verma and Mr Fali Nariman; both realised its flaws and urged the Justice MN Venkatachelliah Commission to recommend a National Judicial Commission for appointing judges. But now, a Constitution Amendment passed by both houses of Parliament with near total unanimity and ratified by 28 state assemblies has been junked in cavalier fashion. Is that justifiable? It should at least have been referred to as large a bench (9-judge) as that which formulated the collegium system. Given the dismay amongst the legal fraternity, this is surely not the end of the story.