India has become a nation run by self-perpetuating elites. Look at some of our major institutions. With a few exceptions, our political parties have now become institutions dominated by families and their clans. Succession in these parties is by birth and merit is only incidental.

Our elite private schools and colleges, again mostly on government land provided gratis, have reservations for children of past students. Going to one of these schools keeps topping off the old school aristocracy and creates a few new members of “people like us”.

This aristocracy rather than becoming the bane of our lives and society is getting further institutionalised with vital institutions like the judiciary too deciding to perpetuate these ways.

How the Supreme Court perpetuates itself reminds one of how the India International Centre’s Board of Life Trustees perpetuate themselves.  A life trustee’s term is till the end of life. When the rare vacancy arises, the surviving life trustees meet to decide on who the next life trustee should be.

The collegium system

The only difference between the IIC life trustees and the Supreme Court is that judges retire. But like the IIC’s life trustees, new Supreme Court judges are chosen by those already in it and are in its “Collegium of judges”.

The collegium also selects judges to the High Courts. The collegium comprises the chief justice of India, four senior-most judges of the Supreme Court and the chief justice of a particular high court and its two senior most judges. The collegium system has also given us a system of becoming the chief justice of India automatically if the chronology is right. Judicial acumen, administrative ability and length of tenure have nothing to do with it.

Consequently we have had chief justices with tenure of just a few weeks. Most chief justices of India, who head not only the Supreme Court, but the nation's entire judicial system, last less than a year.

The judicial system is, to say the least, now a total mess. It is overcrowded, and faced with issues of mediocrity and corruption. Even judges of the Supreme Court have not escaped opprobrium. More than one retired chief justice is now being directly or indirectly investigated by the agencies. Recently a well-known and extra outspoken former judge of the Supreme Court has hurled imprecations and insinuations at the incumbent chief justice of India. How this will pan out is yet to be seen. For the judges have given themselves certain invulnerability by liberally cloaking themselves with powers conferred by the provisions of the contempt of court laws.

Appointing judges

The collegium system was not envisaged in the Constitution. Article 124 vests the power of appointment of the chief justice of India and the judges of the Supreme Court in the president.  It explicitly states that the president shall by warrant, make the appointment after consultation with such of the judges of the Supreme Court and the high courts of the States, as he may deem necessary.

The important point to be noted here is that the provision expressly states "after" consultation and not "in" consultation. This very simply means that the government will choose and seek the chief justice of India's opinion on the selection. A plain reading of the provision tells us that the power of appointment vests in the president.  The president, of course, means the Executive, in other words the government. The president can act only on the advice of council of ministers.

The chief justice of India stands as part of the trinity consisting of the president, prime minister and himself, representing the Executive, Legislature and Judiciary. While they are supposed to function independently of each other, they cannot remain hermetically sealed from each other either. The branches are required to work with each other and influence each other in giving this country a stable, respected and trusted system of government that will serve the people and protect their interests too.

Having said that, democracy is the rule of the people. The only institution in this trinity that directly derives its legitimacy and power from the people is the Legislature, with Parliament at the apex. The emphasis on separation of powers is only to protect the other two pillars of democracy from the overweening and overriding of a rampant Parliament. But separation of powers does not mean an entirely independent existence either.

It is possible to visualise a situation where the government disregards the chief justice’s opinion, and one can hence see a well-founded apprehension of the executive riding rough shod on the judiciary. That is why the system of government envisaged in a democracy is a system of checks and balances. This is a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power. Hence our democracy, like most others, is also a system of government by accommodation. The institutions must not become impervious to each other.

Changing the system

The selection of judges from the first days of the Republic onwards was vested with the government. But in 1993, in something akin to a coup, the Supreme Court created the collegium system, which has been in use since the judgments in the Second and Third Judges Cases, was issued in 1993. There is no mention of the collegium either in the original Constitution of India or in successive amendments. The collegium was the creation of the court to arrogate to itself the right to choose brother or sister judges. The creation of the collegium was a reaction to the indiscriminate transfer of judges, which was perceived as an attack on judicial independence. The reaction of the Supreme Court was to completely oust the executive from the selection of judges for the Supreme Court and the high courts.

This power is without precedent. In the United States of America, the president initiates the appointment to the Supreme Court and recommends a candidate for Congress to approve. In the United Kingdom, the Judicial Appointments Commission set up in April 2006 selects candidates for judicial office in all the courts and tribunals.

The Commission was set up to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. Its creation was one of the major changes brought about by the Constitutional Reform Act 2005, which also reformed the office of Lord Chancellor and established the Lord Chief Justice as head of the judiciary of England and Wales.

But the Commission is very clearly not a creature of the judiciary either. In accordance with the 2005 Act, there are fifteen Commissioners, including the Chairman. All are recruited and appointed through open competition with the exception of three judicial members who are selected either by the Judges' Council or the Tribunals' Council. Membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public.

While stripping the Lord Chancellor of the power to make judicial appointments, the 2005 Act ensured that the Chief Justice did not seize it either. Instead a system was created to ensure that merit that is independently arrived at is the only criterion for selection. Nepotism, corruption and favouritism are not exclusive to the Executive. The judiciary too has shown that it has not remained untouched by this.

The National Judicial Appointments Commission, which was unceremoniously dumped by the Supreme Court, was an attempt to find a via media to restore merit as a criterion, and yet ensure the independence of the judiciary. The NJAC contemplated the participation of both the executive and the judiciary in making recommendations. The Attorney General captures the mood and need exactly when he said: “The executive appointed judges for 40 years. Then, the judges appointed judges through the collegium system for more than two decades. Let the new NJAC mechanism be given a chance to work.”

The Supreme Court has overreacted by holding the 99th Constitutional Amendment Act and the NJAC Act 2014 "unconstitutional and void" and by doing so the court has ignored the unanimous will of the Parliament, most of the state legislatures and the desire of the people for transparency in judicial appointments.

It has perpetuated a system that has not proven to be in anyway superior to what it superseded. On the other hand it has flung down a gauntlet at that most fundamental notion of a democracy that the people speak through their Parliament. It is now for the people to pick up the gauntlet.