A series of run-ins with the judiciary marked the first year of the NDA government, as it pushed for an equal say in appointments to the higher judiciary through the National Judicial Appointments Commission (NJAC).
A veneer of strained civility masked the confrontation between the executive and the judiciary. The first sign of tension concerned the aborted attempt to appoint senior lawyer Gopal Subramanium as a Supreme Court judge.
The collegium had recommended his elevation on May 13, 2014, when the UPA was in power.
However, as the NDA took over at a crucial stage in the appointment process, Mr. Subramanium’s name was segregated and the remaining names were processed for appointment. The government’s silence on why it did not want him appointed a judge cast a cloud on its intentions.
Court watchers say it was the government’s attitude on Mr. Subramanium’s elevation that rankled the most. It was after all only the fourth time in the country’s legal history that the collegium had recommended a name from the Bar for direct elevation as Supreme Court judge.
The stand-off between the executive and the judiciary finally led to Mr. Subramanium withdrawing his candidature for the sake of his “self-respect and dignity”. He said he did not want his “elevation to be the subject matter of any kind of politicisation”.
This episode brought the knives out, with the then Chief Justice, R.M. Lodha, warning that he would resign if the judiciary’s independence was compromised. Justice Lodha blamed the government for taking the unilateral decision to segregate Mr. Subramanium’s name without consulting the collegium.
Debate on collegium
The government invited eminent jurists to debate on a new law to replace the collegium itself. There was no representation from any of the sitting judges of the Supreme Court, especially when the matter concerned judicial appointments and the survival of the 21-year-old collegium system. The debate resulted in “absolute consensus” that the collegium system should go.
A flurry of activity ended with Parliament passing the NJAC Bill and the 121st Constitution Amendment Bill in August 2014 and the Constitution Amendment sent for ratification to State Assemblies.
When the passage of the Bills was challenged before it, a three-judge Bench of the Supreme Court said it was too “premature” to consider the legality of the NJAC before it became a law.
The period also saw the government compelled to rethink the Judicial Standards and Accountability Bill in view of objections from judges. This Bill seeks to lay down enforceable standards of conduct for judges and a mechanism to allow any person to lodge a complaint against a judge on grounds of “misbehaviour or incapacity”.
By December 2014, the political class had closed ranks to ratify the 99th Constitution Amendment, incorporating the NJAC into the Constitution, and the amendment received Presidential assent.
Subsequently, a second batch of petitions was filed in January 2015, again challenging the NJAC law and the Constitution Amendment as “unconstitutional” and a threat to “judicial independence”. These petitions travelled from initial hearings before a three-judge Bench to a five-judge Bench headed by Justice J.S. Khehar.
The NJAC Act was notified in April even as the challenge against it was pending before the Supreme Court.
In day-to-day hearings in the Supreme Court, the government attacked the collegium, calling it a system of “judges appointing judges” unique to the Indian judiciary. Attorney-General Mukul Rohatgi termed the apprehensions about the NJAC “alarmist.”
The government even sought a referral of the petitions to a larger Bench of nine to 11 judges to first debate the legality of the 1993 and 1998 Supreme Court judgments in the Second Judges Case and Third Judges Case, which ushered in the collegium system, before going into the merits of the NJAC law.
On May 11, the five-judge Bench refused, for the time being, the government’s proposal to have a re-look at the 1993 and 1998 judgments before going into the constitutionality of the NJAC law.
A new chapter of a to-and-fro between the government and the judiciary waits to be opened on June 8 when Justice Khehar’s Bench will start hearing on the merits of the NJAC law.
Other developments too pointed to the executive’s troubled ties with the judiciary. Prime Minister Narendra Modi remarked at a public forum that judicial views should not be driven by “five-star activists.” Mr. Rohatgi made some candid submissions in open court against the “illegality” of the collegium.
Mr. Justice Lodha’s successor, Chief Justice H.L. Dattu, may have found nothing wrong in making a personal comment about the Prime Minister as a “good leader and a good human being” during an “informal chat” with presspersons, but he refused to budge when the Prime Minister invited him to select two eminent persons for the NJAC. In his letter to the Prime Minister on April 25, Chief Justice Dattu wrote that it is “neither appropriate nor desirable” that he participate in the NJAC as chairperson when the law itself is under challenge.