NEW DELHI: The political establishment has been scathing in its criticism of the NJAC judgment; as it bemoans the loss of the sovereign voice of the people. It is joined by other commentators, some comical in their criticism comparing the judgment to ADM Jabalpur while others tragically conclude that this order is against the citizen who now faces the wrath of an unaccountable Judiciary.

It is important to historically understand how and why the primacy of judiciary in the appointment of judges came into being. As early as 1958 when political credibility was still perceived as uncompromised, The 14th Law Commission report prepared by then Attorney General M.C. Setalavad, Chief Justice of Bombay M.C. Chagla, Future Chief Justice of India S.M Sikri and future vice president G.S Pathak gave a worrying account of judicial appointments in India. It was found that increasingly appointments were a result of executive influence compromising the quality and independence of judges.

What followed between 1966 and 1977 is well known. The Government much like the current regime believed being an elected majority there was no constitutional obligation to pay heed to an unelected judiciary. The judgments in Bank Nationalization, Privy Purses and the Kesavanand Bharati cases which restricted the parliament’s right to amend the fundamental rights guaranteed in the constitution, resulted in a hostile reaction by the Government. (a) In 1971 the then Law minister started prompting names instead of the Chief Justice recommending, leading to deals being struck (see Justice K.S. Hegde’s account) (b) in 1973, 3 senior most judges were superseded including Justice HR Khanna the lone dissenter in the habeas corpus case. (c) In 1975 the Allahabad High Court set aside Indira Gandhi’s election which led to the declaration of national emergency (d) in 1976 the Law Minister in the Lok Sabha stated that if the Judiciary were to strike down a constitutional amendment again it would be a bad day for the judges. The Government never confirmed appointments of several judges (for example see cases of Justice U.R. Lalit and Justice R.N. Aggarwal) on political grounds while the transfers of judges were done in a whimsical manner (In 1976, 16 judges were transferred from one court!).

As a consequence of the emergency The Janta Party came into power and Justice HR Khanna the lone dissenter in the Habeas corpus case prepared the 80th law commission report of India. He unambiguously stated that political interference in appointment is dangerous. He thought that consultation between senior most judges must be held so as to avoid arbitrariness of Chief Justices opinion, giving birth to the idea of “collegium”.

In 1980 a majority government returned and you would think better sense would have prevailed. However the executive continued trying to compromise judicial independence. In 1981 the Law minister issued a circular without consultation with the Chief Justice of India. The Circular mandated that 1/3rd of the Bench of a High Court must be from outside the state. A consistent pattern emerged of the executive misusing its power to delay the appointment and confirmation of judges.

The circular was challenged in the Supreme Court in SP Gupta vs Union of India (1981). The Court upheld this circular as constitutional further allowing the executive to continue politically motivated appointments.

In 1983 another circular was issued by the Law Ministry stating Chief Justices must be appointed from outside the state. In April, 1983 the Bar Council of India gave a resolution bringing to light the miserable state of the Higher Judiciary. The resolution recorded that A Number of judges across the country were being embarrassed, confirmation was delayed by years and appointments happened on political grounds. Judges were coerced into taking pro establishment decisions demoralizing the entire judiciary. Most importantly the resolution, almost apologetically, accepted the Supreme Court itself through the SP Gupta case had its self validated this power being exercised by the Executive.

Chief Justice Chandrachud who retired in 1985 as longest serving Chief Justice confessed that in process of appointments the hands of the Chief Justice were tied by a majoritarian executive compromising the independence of the judiciary.

By 1991, the executives handpicking of judges had created serious problems in the administration of the judicial system; it failed to fill the increasing vacancies leading to enormous burden on courts across India. Finally this crisis in appointment of judges created by the political establishment led to the 2nd judge’s case in 1993 (40 years after executive abuse) wherein it was held that let the consultative process remain between all the constitutional organs but if in case of a dead lock let the Judiciary’s opinion take primacy. To say this decision rendered the executive helpless is an exaggeration.

We may go back only to 2015 when eminent lawyer Gopal Subramanium was recommended by the Collegium. As per the consultative process the Home Ministry on the basis of an Intelligence Bureau report (consisting of frivolous grounds) suggested rejecting his appointment. The IB report was nothing more than a personal attack forcing the luminary to withdraw his nomination. This was the conduct of the executive.

Let us list out some of the most significant judgments of our times. Allocation of spectrum (2G) case, Coal allocation case, BCCI appointments and functioning, SIT on Black money, SIT on the Gujarat riots, CBI inquiry on the Vyapam Scam, striking down legislation protecting criminals from contesting elections, CAG audit on private telecom companies, striking down of 66-A, striking down of Salwa Judam, Vishakha guidelines for gender rights, increasing independence of CBI, police reforms, environmental protection etc.

Most of these cases saw the public as petitioner and the State as respondent. Decisions were contested tooth and nail by the Government. It is the Judiciary who redeemed faith in the people and institutions (CBI a prime example). The Constitution has made clear that the elected executive cannot impose tyranny on the people. They will be accountable to the rule of law.

The Bench hearing the challenge to the NJAC was faced with mudslinging of the worst kind. Former Judges were named and dishonored as part of the Government’s arguments. The Union had no answers on important questions including who the eminent persons are and how they will be appointed. Refrain was “do as we say, we are the voice of the people”.

The desperation to gain control on the judiciary is clear through the vicious arguments in the court and the subsequent reaction by ministers of the Government. Could the government not through mutual consultation find a more transparent system? Is the concern to dominate the judiciary or to improve the workings of the system?

Do we want Judges of writ courts to be promoted and transferred on the will of the political establishment; In this regard we are aware of the plight of Police officials, CBI officers and Bureaucrats.

13 Governors have been transferred in this régime; let us not forget the current leadership at the centre did not appoint a Lokayukta in Gujarat for 10 years! This in spite of the Chief Justice of Gujarat repeatedly requesting the Government to fulfill the consultative process. The Supreme Court in State of Gujarat vs R.A. Mehta condemned the State Machinery for this unconstitutional delay. But by then Justice RA Mehta humiliated no longer wished to be Lokayukta. The state Government in Uttar Pradesh has moved to amend the Lokayukta Act to remove the Chief Justice of the High Court from the consultative process of appointment. This decision came soon after The Chief Justice of Allahbad High Court had questioned the choice of nominee, as the person was seen close to the ruling party.

The constitution bench hearing the NJAC has unanimously stated that there must exist transparency in appointment; this has purposely been ignored by ministers and luminaries as the point is not to improve but to infiltrate. The attitudes is amend what we do not agree with and transfer those who do not listen.

The 99th Amendment has rightly been struck down, as Justice Lokur in his majority opinion stated “Those who do not remember their past are condemned to repeat their mistakes”.