The Second World War, began with a period of forced calm called the phoney war. The Allies had declared war against the Axis in September 1939, after Hitler’s invasion of Poland. Hostilities in earnest commenced only seven months later in May 1940, with the invasion of France. Since August 2014, a similar face-off has been brewing in India between the government and the judiciary, ever since the National judicial appointments bill and 121st Constitution Amendment Act were passed by parliament.

For the past two decades, India’s judges were appointed by the judges themselves. Appointments to the Supreme Court were recommended by collegiums of the five senior-most judges of that Court and similarly, High Court judges appointments were recommended by the three senior-most judges of the concerned High Court. This procedure was the result of a somewhat innovative judgment in 1993, by Justice JS Verma in the first Supreme Court Advocates on Record Case. The judgment was a response to governments choosing their own favourites when it came to appointing judges.

In a liberalised Mandal-Mandir era of weak coalitions, the judiciary took over the judge making process, primarily justifying it as necessary to the independence of the judiciary. Collegium recommendations were to be implemented by the government, which could however ask for a reconsideration if the need arose. If a recommendation was reiterated, the government was bound to comply. Effectively, subject to a request for reconsideration, the judges had a 100% say in additions to their tribe. In a country where legislators are elected by majority, civil servants selected by examinations, judges were being invited to join a self-perpetuating elite.

A barrage

When the newly hatched judges grew up to dominant judicial czars, overseeing vast areas of national activity, as arbiters of public interest litigation, the political class and the executive seethed but endured the barrage. A succession of coalition governments, in the absence of conclusive majority support in Parliament, had little choice but to succumb to what many termed ‘judicial overreach’.

The 2G proceedings saw a minister, a senior civil servant and several company executives being sent to jail in the course of investigations. Blowback began when the UPA government, with Kapil Sibal as law minister, termed the appointment system as opaque. The UPA government got a constitutional amendment bill passed through the Rajya Sabha, but a fortuitous slip in parliamentary procedure prevented the bill from being tabled in the Lok Sabha. The process was nevertheless seen as a warning shot fired across the judiciary’s bow.

At that time with elections then on the horizon, Fali Nariman told me,“A majority government will see a conformist judiciary." Having lived through the Indira Gandhi era, where a strong leader had attempted with some success to mould the judiciary in her likeness, Nariman’s pessimism was not without basis. Whittling away at judicial independence in the early seventies, lead to its capitulation during the emergency. The Supreme Court’s subsequent foray into public interest litigation in the eighties were initially seen as expiatory in nature by judges who wished to live down, their failure to stand up when it mattered.

New structure

A stunning single party majority in the parliamentary elections of May 2014 saw an aggressive government borking the appointment of Gopal Subramaniam, whose past conduct as a lawyer was seen as unfriendly. Soon thereafter, despite Chief Justice Lodha’s spirited public defence of judicial independence, the constitutional amendment and the accompanying NJAC Act was passed by Parliament with even the Congress supporting the move.

The new structure, provides for a six-member body, comprising of three senior Supreme Court judges, two eminent citizens and the law minister to make recommendations for judicial appointments. In effect, the judiciary’s 100% say has been whittled down to 50%. What’s worse is the fact that even a name backed by all three of the judicial members can be vetoed by any two of the other members. In actual working, with most occupants having a transient presence, power would most likely devolve on the permanent convenor of the commission, who would be the secretary of the department of justice. The package as a whole is designed to willy-nilly wrest back control of judicial appointments back into the hands of the executive.

Petitions were immediately filed challenging the two acts. In August 2014, when the constitutional amendment had not been ratified by the states and hence had not come into effect, the court disposed off the petitions as premature and did not entertain them. It however left it open to the petitioners to reiterate their challenge after the law came into being. With 17 of the 29 states having ratified the act and the President having given his assent in December 2014, it now remains for the government to notify the date, on which the NJAC will come into force. A new set of petitions were filed immediately in January. They have yet to be listed on board for hearing before the court. In the meanwhile an impasse of sorts has come into being.

Awaiting a new order

The old order has not died and the new is yet to be born. Law Minister DV Sadananda Gowda has told the judiciary that new appointments cannot be made since the constitutional amendment has now come into force. He has requested the Supreme Court to hear and deliver judgments on the challenges to the constitutional amendment. On the other hand, the NJAC cannot be constituted without the nomination of two eminent persons as members. Chief Justice Dattu has currently refused to participate in the nomination of the two eminent members to the NJAC as he feels that such a step may embarrass the institution, when it takes up the constitutional challenge. The collegium has met recently to make recommendations on transfers and appointments of chief justices of High Courts, from amongst senior existing judges. A standoff cannot long continue because if judges keep retiring and their replacements are not available, the overburdened litigation system in India will collapse, taking with it the nation’s calling card of reliance on the rule of law.

The standoff is being watched closely, to detect any signs of one or the other party blinking and walking away. The judiciary has so far stood firm, primarily out of a sense of occasion and the weight of India’s Constitutional history. The government, backed by majority support in Parliament and outside, currently sees no incentive to make any gesture of conciliation. The lessons of the Ifthikar Chaudhry versus Musharraf episode in neighbouring Pakistan do not seem to have been learnt

The only way forward, seems to be to schedule a hearing of the petitions and to ascertain the government’s position in court. India will be watching to see whether the judiciary this time will stand up to be counted when it matters.