The common Indian is a god-fearing and court-fearing person. Even the most powerful politicians are made to kneel before gods and the Gandhari of the Indian Justice system alike. Any criticism against either is done behind closed doors and whispered conspiratorially. Our judiciary (much like religion) is considered to be a (terrifying) shadow that follows our legislature everywhere and keeps it in check.

The confidence that people have in the judiciary seems to be extremely high — until they themselves have to go to court and ask for justice. Step into a chaotic court and this confidence in the country’s justice system simply erodes. The process is broken, long and expensive. Judges tend to give strange judgments like this recent one by the Supreme Court that said “a sex worker cannot file a case alleging rape if her customers refused to pay her”. Or this one where it upheld the constitutional validity of criminal defamation.

I’m just going to come out and say it: our judicial system is out of touch with reality. It is time to seriously think of reform. But the real tragedy is that any attempt to do so is being thwarted by the judiciary itself.

Way back in August 2014, in the wee little days of the Narendra Modi government, a bill was brought in that would dramatically change the ways our judges are appointed. It was called the National Judicial Appointments Commission (NJAC) and was one of the first items on the legislative agenda of this government. It was a small attempt to reform our judicial system and change it for the better. But then, in October 2015, the judiciary stepped in and killed it.

This week’s column is about a grand battle between the two pillars of our democracy: the Legislature and the Judiciary, with the NJAC as its centrepiece.

Once upon a time…

There were three friends: Neta, Babu and Judge.

All three had expertise in different areas, so they banded together and decided to start an enterprise. Neta was a good leader and was therefore to take all the difficult decisions. Babu was good with management and was tasked with executing Neta’s decisions. Judge was good at problem solving, so he was supposed to make sure the customers were getting their due and treated fairly by the enterprise. Judge was also tasked with the onerous job of keeping Neta and Babu in check, in case they took weird decisions.

All of these functions were written down in a document which all of them agreed to and signed. Sort of like a constitution, which fleshed out the functioning of the enterprise and defined their roles.

The enterprise became bigger, more complex; the problems compounded. Yet, it functioned, somehow. The customers were more or less happy because the three friends worked as a team (most of the time) and delivered what was expected of them.

One day, Neta made a decision to enter the business of producing and selling booze. Babu was ordered to buy distilleries and set up shops to sell the product. Judge, who was a teetotaller, was not happy.

Judge: “Aie Neta, stop this nonsense. Booze is harmful and not fit for human consumption. Babu, I order you to stop whatever you are doing.”

Neta: “Harmful? Maybe! But so many of our customers enjoy drinking. Our profits will go batshit crazy. It’s a hot product, dear Judge. Babu, don’t listen to him, continue what you were doing.”

Babu: “Uhh… make a decision guys. I’m floating around in the void without a purpose here.”

Judge: “Stop!”

Neta: “Don’t stop!”

Judge: “Screw you!”

Neta: “Screw YOO!”

Babu: “…”

As often happens, disagreements led to bitterness and conflict. So Neta decided to change the rules of the game. He tried to fire Judge by changing the constitution. Neta declared that he would be the one who will appoint a new person to replace Judge.

Neta: “You’re holding me back bro. It’s time for us to grow. So you have to go. It’s time I took complete control over the enterprise. So… Bye!”

Judge: “Nope. Not happening. You tend to make stupid decisions and you need me to reign you in. I’m not going anywhere. The changes you made to the constitution are unconstitutional!”

Neta: “Uhh… That’s kind of a paradox, no?”

Judge: “It sure is, boy! Now go sit in the corner and think about what you’ve done!”

In this crazy situation, the number of customer complaints before Judge kept piling up without any resolution. The enterprise was in deep, deep trouble.

This is what is happening right now with our great democrazy.

Three Pillars

We have all learnt in our bachpan that our democracy is made up of three pillars: Legislature, Judiciary and Executive. They are all supposed to keep a check on each other so that they serve citizens efficiently. There are numerous cases where the Parliament passed laws, ordered the Bureaucrats to roll ‘em out, but the Judges stepped in and struck down that law.

So there are these big questions that needs to be answered:

• Which is the more powerful pillar?
• Is there such a thing as a ‘final decision’?
• Should the Legislature have ultimate power?
• Should the Judiciary have complete power to overrule the Legislature?
• Should the Legislature be allowed to appoint judges?

The Bharatiya Janata Party-led government tried to answer the last question in August 2014 when they brought in the National Judicial Appointments Commission (NJAC). The point of the legislation was that the Parliament would be given the power to appoint judges.

“I HAVE THE POWER!”

Before we get into this law, we must talk about how judges were appointed before this epic intervention.

The Collegium

Collegium system is a process where a committee of the Chief Justice of India, four senior judges of the Supreme Court and three members of a high court (in case of appointments in the said high courts) take decisions related to appointments and transfer of judges in the Supreme Court and High Courts. What’s interesting is that this is a system that has been setup by the Judiciary themselves through three crucial judgments called the “Three Judge Cases”.

In other words, this system is not defined in our constitution!

The Three Judge Cases say:

• The court ruled that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. (1981)
• The court went on to create the collegium system to appoint judges. (1993)
• Ex-President KR Narayanan, the supremest of them all, questioned the validity of the collegium system, which was struck down in the third case. (1998)

Simply put, the problem with this system is a paradox: “Who will judge the judges?”

The collegium has led to nepotism, corruption and just plain douchebaggery when appointments are made. The process is a closed system, super non-transparent and nobody really knows why a particular person was appointed. There have been numerous cases where people with better qualifications and better track records have been sidelined to make way for someone incompetent.

There have been numerous attempts to challenge the collegium, but every darn time the Supreme Court has struck it down. Then along came the present government and its attempt to scrap the collegium by passing the NJAC Bill, 2014. Parliament is supreme and can make changes in the constitution. So by that logic, it should be able to change the functioning of the judiciary too, right? RIGHT?

Apparently, no.

National Judicial Appointments Commission

The NJAC, passed by Parliament on August 14, 2014 with an insane majority, replaces the Collegium with a new commission. The Bill then became an Act. The new Act laid down the composition and functioning of the new appointments commission:

• From the Judiciary, there would be the Chief Justice and two judges of the Supreme Court.
• From the Legislature, there would be two eminent personalities and the Law minister.
• They would together take a call on the appointment of judges.
• In turn, the two eminent personalities would be picked by the PM, the Leader of Opposition and the Chief Justice of India.

The composition of the NJAC was supposed to be a three-versus-three situation. There has been an attempt to balance out how much say the legislature and judiciary have. The simple reason being that it would be dangerous for our Netas to take over the appointments completely. Then there would be judges appointed who favour the current government, which would be kinda counterproductive.

The proposed NJAC was a sort of a compromise — both Parliament and the Court would have a say in appointments. It was a fine balancing act, which would give much joy to the country!

But the Supreme Court was not happy. On October 16, 2015, it declared the NJAC as unconstitutional and stuck it down, reverting to the old collegium system. The court said that the political element would destroy judicial independence. It also agreed to review the collegium system and accepted that it is flawed. In other words, the whole reform died a quiet death.

The Big Questions Remain

People might argue that our Parliament today is full of crooks. That we can’t trust our elected representatives with such a big task like judicial appointments. But this argument becomes ‘moo’ if you think long term.

Do you believe that our Parliament will *always* be full of crooks? Surely, there is hope, that sometime in the future we would get an efficient bunch of people within that circular building. At that point of time, would you then be able to trust the Parliament to be the most powerful pillar of the three?

Elected representatives are the voice of the people and Parliament is a process in continuity. The government is a creature of the legislature, not the other way round. Members of Parliament, they come and go, but the pillars they remain!

And it’s about time the will of the people reigns supreme.

I leave you with the Good People of PRS Legislative to explain the more technical aspects of the (now dead) National Judicial Appointments Bill, 2014.