The Supreme Court sent shockwaves down the spine of the elected executive by declaring the 99th constitutional amendment to set up the National Judicial Appointments Commission (NJAC) as unconstitutional and void as it “violates the basic structure of the constitution”. This comes from the Constitution Bench with a majority – 4:1 in favor of the rejection of NJAC.

I agree that with only judges-appointing-judges part it does not leave room for something to be added. As the lone dissenting judge Justice J Chelameswar writes: “There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or is good for the people of this country.” The Supreme Court judges are the guardians of our Constitution. What happens if a Collegium turns rogue? As the Roman poet Juvenal wrote: “Quis custodiet ipsos custodes?” (“Who will guard the guards?”)

Now what the basic structure states in layman language. Judges are to be appointed by the President of India after consultation with the Chief Justice of India and what it has become is that the Chief Justice of India will appoint the Judges and the President of India signs the file. It is worth mentioning here that 90% of the Presidents of India come from the Legislature.

The five-judge Supreme Court’s verdict did raise some questions on the judiciary. The NJAC law was passed with overwhelming majorities in both houses of parliament and by 20 state assemblies clearly showing the will of the elected, though it may not be the will of the people.

Is the constitution a subject matter of Individual interpretation or is it a rule book in Black penned by the founding leaders of our Country? 

What triggered curiosity was the passage by Justice Kehar in the Judgment where he wrote, “It is difficult to hold that the wisdom of appointment of judges can be shared with the political executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance.”

Does this mean we are a backward civil society or that we simply lack wisdom? I agree with the statement and here is why we need to understand how our society votes when it comes to the elected. 70% of the voters base their decision on caste, party or religious views instead of the right candidate. Yes, we get easily fooled and now the elections seem to be about who not to vote for rather than who to vote for and yes, we can vote an anarchist to absolute majority.

Arun Jaitley states “democracy can’t be the tyranny of the unelected”. In a Facebook post titled “The NJAC Judgement – An Alternative View”  Mr. Jaitley said the opinion of the Supreme Court is final, but not infallible. Let us ask ourselves, the government can make any rule, any law and the statement only shows legislatures’ unfulfilled ambitions. Mr. Jaitley, Democracy cannot be the tyranny of the elected.

Citing another important reason for striking down the NJAC law was the Emergency of 1975-77, imposed by the then Congress government. The Constitution Bench opined that it is important that the government does not  have any role in the appointment of judges. It was the imposition of Emergency that gave birth to the collegium system.

Those opposing the Collegium system say that this kind of a system is  unheard of in most parts of the world in which  judges appoint  judges through a selection process.

Another comment on collegium system by Jailey creates bias. He tried to elegantly create confusion about the appointment of judges in one sentence: “Collegium is like a Gymkhana club in which existing members appoint new members”.

What was the 99th amendment (NJAC)?The NJAC will have six members: The Chief Justice of India (CJI), two senior most poise judges of the Supreme Court, the Law Minister and two “eminent persons” selected by a panel comprising the CJI, the PM and the Leader of the largest opposition party (LOP). But then came the crunch. Any two of these six members could veto an appointment.

The judgment made it clear that it was opposed to the Law Minister being a member of the panel, as his very presence would impinge on the principle of the independence of the judiciary and be contrary to the separation of powers. And the presence of the Prime Minister and the leader of the opposition in the panel to select the judges was also viewed negatively.

Then, there is another reason which cannot be ignored. The government is the largest litigant in the country and has the dubious distinction of losing 80% of the cases in the Supreme Court. Government presence and interference could pull strings on judiciary.

What’s Next?  On November 3, a five-judge Constitution Bench will consider suggestions on improving the Collegium system, and has invited submissions from the government and other stakeholders. The Constitution Bench chose to take this route as it quashed the NJAC and ordered revival of the Collegium system.

Ruling that the primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution, it said these appointments will continue to be made by the Collegium system in which the CJI will have “the last word”.