Not since the Shah Bano case in the mid-1980s have the judiciary and executive faced the kind of stand-off that we are now seeing with a five-judge Constitutional Bench of the Supreme Court declaring the National Judicial Appointments Commission and 99th Constitutional Amendment Act “unconstitutional and void”.
The Shah Bano case was very different from the current one, of course. Back then, in 1986, the Rajiv Gandhi government used its brute majority in Parliament to overturn a Supreme Court judgment which made a Muslim man pay his divorced wife and children alimony per month over and above that required by Muslim Personal Law. In this case, the boot is on the other foot, with the court overturning two bills passed by political consensus in Parliament and ratified by 20 state assemblies, restoring the system of judges appointing judges and setting the stage for the biggest potential standoff between the judiciary and the executive in a generation.
Between Shah Bano and now, governments of all kinds have received all kinds of raps in various courts but this is different. The merits of the case apart, this is about the fundamental division of power in our democracy and about a Laxman Rekha defining the limits of Parliament and the political class vis-à-vis the power and the limits of the judiciary.
For those who say this crisis is about the “will of the people” versus the “tyranny of the elected”, as one senior lawyers put it, the apex court is crystal-clear: when it comes to the constitutional validity of a law, “it is inconsequential whether it was passed by Parliament with a wafer-thin majority, brute majority or unanimity.”
By deciding that judges will continue to appoint judges, as they have since 1993, the court has drawn a line. The broader message is unambiguous: politicians stay off. As senior lawyer Harish Salve put it, the “SC is giving a message that the power is with them.”
Parliament and the political class were right in diagnosing the problem with the collegium system of judge-selection, its opacity and lack of accountability. NJAC was enacted after a broad political consensus which evolved after several commissions and parliamentary committees found flaws in the collegium system over the years. Even the late Justice JS Verma, the author of the landmark 1993 judgment which created the collegium system, admitted later that the system had failed.
This is why the political dismay at the judgment: whether it is cabinet minister Ravi Shankar Prasad saying that “parliamentary sovereignty has received a setback”, law minister saying he was “surprised” because the NJAC “had 100 percent support of the people” or Attorney General Mukul Rohatgi scathingly called it “a flawed judgment ignoring the unanimous will of the Parliament, half the State Legislatures and the will of the people”.
The concern has always been with the solution – and about the fear of the political class using the backdoor to usurp control over judicial careers. The court has given its judgment on this. With all due respect, it may be over-reaching here but it it has thrown down the gauntlet.
In the end, this is also a morality tale. Whether the government decides to fight back through Parliament or not, by calling for further discussion on how to improve the collegium system, the apex court has itself accepted that there are flaws in the system. It must now fix them.
The judiciary is central to our democracy and while preserving its independence is crucial, it is equally incumbent on it to look within and reform.