<div><em><strong>Sutanu Guru</strong> takes a quick look at the SC verdict calling the NJAC Bill unconstitutional</em></div><div> </div><div>The suspense is finally over. A five judge bench of the Supreme Court has delivered a verdict that basically kills the National Judicial Appointments Commission Bill passed unanimously by the Parliament in 2014. The NJAC Bill essentially meant to take away the exclusive powers of the “Collegium” of judges to make appointments to the higher judiciary. Those favouring the 20-year-old collegium system are of the opinion that the NJAC Bill would have led to a severe erosion in the independence of the judiciary. Those in favor of the NJAC are of the opinion that the collegium system is too opaque and has perhaps resulted in many cases of unsuitable or unfit persons becoming judges of the High Court and Supreme Court because the collegium system faces absolutely no scrutiny from the public.</div><div> </div><div>This author is no legal expert and wouldn’t claim to be familiar with the intricacies of the positions taken by people for or against the NJAC Bill. For the moment, it is clear that the Supreme Court has had the final word on this. Of course, the government can appeal to a full constitutional bench of the Supreme Court to review the verdict. But many senior judges had make it clear for a while that they would not allow the government or the Parliament to tamper with the collegium system that guarantees the independence of the judiciary. Nobody can predict how the whole thing will end.</div><div> </div><div>But this marks another case of interesting battles between the judiciary and either the executive or the legislature. The most notorious such case dates back to 1964 and is known as the Keshav Singh case. Basically, the case was a virtual war between the Allahabad High Court and the Uttar Pradesh assembly with each wanting to arrest members of the other’s bodies! By and large, it is the Supreme Court that has prevailed as the last word when it comes to contentious issues. The most legendary of these cases is now recorded in history books as the Keshavananda Bharti case. In this verdict, the Supreme Court made it clear that while the Parliament has the power to amend the Constitution, it could not alter the “basic structure” of the Constitution. This verdict was one in a series of skirmishes that the judiciary had with the then Indira Gandhi led Congress government. Most legal experts are still convinced that the Keshavanda verdict essentially saved Indian democracy.</div><div> </div><div>But the Parliament does override even Supreme Court verdicts on occasions. The most notorious is the Shah Bano case. In 1985, the Supreme Court declared that the divorcee Shah Bano was entitled to alimony. Patriarchal and regressive elements in the Muslim community construed this as an attack on Islam and created firestorm. Rajiv Gandhi, who then led a Congress government with the largest ever mandate in Indian electoral history, got the Parliament to pass a Bill that overturned the Shah Bano verdict. Some pundits reckon this one step led to the eventual growth of competitive fundamentalism of Hindutva and Islamic ideologues. The other equally notorious example was in 2002 when Atal Bihari Vajpayee was the Prime Minister of an NDA government. The Supreme Court essentially passed a verdict that would have disallowed politicians accused of serious criminal offences of contesting elections. The Parliament unanimously passed a Bill overturning the Supreme Court verdict. The ghost of this controversy resurfaced in 2013 when the Supreme Court delivered a verdict that disallowed “convicts” from contesting elections. The UPA government led by the hapless Dr. Manmohan Singh passed an ordinance that overturned the verdict. Already engulfed by allegations of massive corruption, this decision of the UPA government triggered widespread criticism. And then, of course, Indians watched a live TV spectacle of Rahul Gandhi tearing the ordinance to shreds in a press conference!</div><div> </div><div>As mentioned earlier. The Supreme Court has usually stood up for the rule of law and for the common man during its many battles with the executive or the legislature. But the big question is: does that mean that the collegium system is fool proof and that corrupt judges would never ascend to the High Court or the Supreme Court? Sadly, judges are human beings and only the hopelessly naïve would contend that judges cannot be corrupt, or influenced by vested interests. In 2010, former Union Law Minister Shanti Bhushan created a sensation in the Supreme Court when he claimed that “at least eight former chief justices were corrupt” and dared the Court to send him to jail for contempt. Neither he, nor his son Prashant Bhushan who had publicly accused a chief justice of misconduct and faced contempt proceedings were sent to jail. </div><div> </div><div>In the event, for the Supreme Court to contend that the collegium system of appointing judges is the only one acceptable to it is contentious, to say the least. Once again, the author is no legal expert. But the superior courts now pass verdicts that affect the livelihoods of tens of millions of people. Cancellation of the telecom spectrum and coal bloc allocation are two examples. As is the little debated order that would virtually ban all street vendors from selling food in Delhi and neighboring areas. If the judges can have such enormous power over the fate of millions, surely people should have a say in who becomes a judge? It might sound like a wild suggestion from an amateur, but why not follow the American system where the Congress and the Senate have to approve the appointment of a Supreme Court judge? </div><div> </div>
