At the core of this tussle is the endeavour to convert our judiciary from an opaque club run using an undisclosed rulebook to a modern institution informed by equity and fair play. This is impossible if we do not even have a half equitable way to appoint our judges. As it stands today, in the context of the Supreme Court , we have a 'collegium system' without constitutional sanction. The constitution clearly prescribes that the Prime Minster and the Chief Justice would decide which judges to appoint, and the President would then promptly rubber stamp! How this simple scheme has transformed into the 'collegium system' where the judiciary alone appoints judges is a fascinating tale of judicial usurpation of executive function. Underlying this contrived scheme is the untested ideological assumption that politicians are invariably corrupt who can't be trusted while judges are incorruptible and can always be trusted.
This is not how the collegium system is perceived in lawyer circles. Lawyer's lunch rooms are intermittently abuzz with stories of back room deals by which the appointment of a nephew is exchanged for the appointment of a brother-in-law and so forth. It doesn't matter if it is true or not. When you go about establishing an opaque club of members co-opting other members and no one knows the criterion -if there is a criterion - perceptions become reality and the institution stands undermined.
Here then is the core issue. Over the past few decades, the Supreme Court has been more than verbally explicit time and again on the obligation of all our public institutions to operate transparently, fairly and justly. Alarmingly, in the several decades that the collegium system has been in operation, its deliberations have not been informed with the very features that the Supreme Court considers sacred to democracy. This cannot be acceptable in a country which truly believes that the judiciary is the last great holy cow. Indeed, the judiciary believes that too.
The judiciary won't pause a minute before legislating measures to protect women in the workplace, draft administrative guidelines on how to treat mother-in-laws in cases of domestic violence, demand that municipal corporations provide lanes for cyclists, lecture the government on how to allot coal mines or spectrum or otherwise hold forth on what constitutes probity in public life. It is unacceptable that its inflexible, and admirable, position on probity and transparency doesn't extend to itself. It is also indefensible for the judiciary to rule that these same laudable principles do not extend to judges being obliged to declare their assets or subjecting themselves to the RTI Act. If you look at the root of the National Judicial Appointments Commission Act 1914, it comes down on the legislature asking the justice machine to practice what it preached.
This is exactly how the new NJAC Act positioned itself. The Statement of Objects and Reasons projected it as an attempt:
"to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts" (see paragraph 5).
Tragically, what the legislature said it set out to do, and what it actually did, were two very different things.
In the main, the Judicial Appointments Commission was to consist of six members, only half of them judges. The other half consisted of one minister and two "eminent persons". Of course, the artfully dodgy 'eminent person' construct didn't fool anyone. Notwithstanding the contrived gravitas, there was no reason to think that someone like Laloo Yadav, or even G. Raghava Reddy of the VHP, would not qualify as an eminent person. At best, this was a power game of hat flipping between rival appointing authorities. It was totally unclear how introducing three politicians in the mix would do any more than inject three political traders in the Judicial Horse Trading marketplace.
That apart, the NJAC was designed for paralysis, not action. Basically, the commission was structured for stand-off. Any appointment vetoed by two persons was freeze dried. When it came down to dust, experts locked horns on whether the selection committee needed to be equally represented by judges and politicians or whether judges must have majority in the appointing body. No one seriously argued against the fatal flaws of the collegium system.
While the debate raged, I read the NJAC Act and looked for the triggers out of mouth of which this transparency and accountability would flow. It was in vain. Merely having the government stick a foot in the judicial appointment door couldn't by itself give us either accountability or transparency. That's true even if judges alone appoint other judges. Lost totally in the heat and dust of the appointing authority debate was the laudable but quickly jettisoned ambition to implement a system promoting transparency and accountability. That burning need still cries for mercy in the wilderness.
It is thus with grave mixed feelings that I read the NJAC judgement. A flawed piece of legislation has been shredded but the resulting situation deeply distressing. The bathwater has been thrown out, but then so has the baby. Not even the judges of the Supreme Court deny that the collegium system doesn't work. Indeed, quite the contrary. Justice Kurien Joseph has been forthright in criticising the collegium system for "denying deserving candidates" for "subjective reasons" and for denying opportunities to the "less patronized ones", leading to "unworthy appointments". Justice Chelameswar is disturbed that the record of those appointed is beyond the reach of everyone, even a Supreme Court judge. He feels "such a state of affairs doesn't either enhance the credibility of the institution or the good of the people of this country".
The good news, though, is that the NJAC Act has forced the Supreme Court to accept that it must practice what it preaches. At the hearing on November 5th, 2016, it has asked the Attorney General to invite, collate and present suggestions from lawyers, bar members, the public, the intelligentsia and other stake holders. It's a bit early to break out the Champaign bottle though. It's not as if the Supreme Court has ruled that it is bound to implement a transparent, equitable system that is also fair. Will the Supreme Court see it fit to incubate and reincarnate our justice machine into a just, transparent and equitable instrument worthy of the future we have imagined for India? I don't know. We Indians famously don't like to implement our rhetoric. Let us all now join our hands and like Rabindra Nath Tagore pray that the Supreme Court sees the light and "into that heaven of freedom, my father, let my country awake".
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His autobiography "Legal Confidential" released this week.