It is extraordinary that there should be near-unanimity in the country that the present system of judicial appointments that was put in place in 1993 is deeply unsatisfactory, and yet the most significant legislative effort to reform it should fail before the Supreme Court. It is no surprise that a five-judge Bench has struck down the Constitution (99th Amendment) Act, 2014, by which the government established a >National Judicial Appointments Commission to select members of the higher judiciary. There were doubts whether the composition of the NJAC, especially the inclusion in it of the Union Law Minister and two “eminent persons” appointed by the government, would survive judicial scrutiny. For, the law also gave any two members a veto over all decisions, raising the question whether the judicial members could be overruled by the executive representatives. The Attorney General could not convince the court that the amendment, along with the >NJAC Act , was aimed at restoring the system of checks and balances which, according to the government, was lost after the Supreme Court created the collegium scheme of appointments. The core question was whether the new institutional mechanism to appoint judges impinged on the independence of the judiciary, a basic feature of the Constitution. The court has ruled that it does. Justice J.S. Khehar, writing the main judgment, has held that the clauses provided in the amendment are inadequate to preserve the primacy of the judiciary. The inclusion of the Law Minister in the body impinged on both the independence of the judiciary and the doctrine of separation of powers.
Nobody on either side of the debate disagrees that the judiciary should be insulated from political interference. Yet, should the judiciary retain its primacy, or should the executive have a say in order that flawed choices do not erode the institution’s credibility? Justice Khehar has said the conduct of the political executive showed it tended to reward favourites in many fields. Preserving the primacy of the judiciary was a safe way to shield the institution from “the regime of the spoils system”. Justice J. Chelameswar, in his dissenting opinion, is candid in questioning the lack of transparency in the collegium system. Even while restoring this system, the majority has invited suggestions to improve it so that it is more responsive to the expectations of civil society. While to some it may appear that striking down a Constitution amendment passed unanimously in both Houses of Parliament and ratified by 20 State Assemblies amounts to negating the people’s will, it cannot be forgotten that the judiciary remains the sole authority to decide whether a law violates the basic structure of the Constitution. What the situation indicates is that India is still struggling to put together a transparent appointment system not vitiated by executive patronage or judicial nepotism.