“To assume or assert that the judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved,” declares Justice Chelameswar, the lone dissenting voice on the five-judge Bench that struck down the National Judicial Appointments Commission as unconstitutional.

And yet it is this dogma that is all pervading in the judgments written by his four brother judges, one of whom felt that it was difficult to repose faith in civil society to be a part of the judicial appointments process, and dismissed the people of this country as not being “sufficiently motivated, nor adequately determined, to be in a position to act as a directional deterrent, for the political-executive establishment”.

Given the contempt for citizens and their elected representatives in the pronouncements of the majority, the dissent of Justice Chelameswar is worth recounting as it acknowledges how “we the members of the judiciary exult and frolic in our emancipation from the other two organs of the State.”

The majoritarian will

Justice Chelameswar acknowledges the fact that Parliament, representing the majoritarian will, was satisfied that the existing process of judicial appointments which was overseen by the Collegium, where judges appoint judges, needed changing. He felt that this constituent assessment of the need for change was clearly off limits to judicial review.

He then declares in no uncertain terms that primacy of the opinion of judiciary in the matter of judicial appointments “is not the only means for the establishment of an independent and efficient judiciary.” In fact, as far as he is concerned, the question is not whether the NJAC would yield a more independent and efficient judiciary.

The issue, according to the learned judge, was whether the new system of appointing judges ushered in by Parliament was within the permissible limits of its power to amend the Constitution, that is whether the NJAC completely destroyed the independence of the judiciary, a basic feature of the Constitution.

Justice Chelameswar upholds the constitutionality of the NJAC and agrees with the Attorney General’s argument that the basic feature of the Constitution has nothing to do with the primacy of the opinion of the Collegium, but is concerned with the non-investiture of absolute power in the Executive to appoint judges. In reaching this conclusion, he launches a fatal attack on the assumptions underlying the judgments of the majority.

Doctrinal heresy 

The proposed NJAC was to consist of three judges, the law minister and two eminent persons from civil society. Justice Chelameswar tackles the majority’s view – giving the law minister any say in the process would amount to politicising the judicial appointments process – head-on. He contends that even if the law minister were to propose a name, given that no appointment could be cleared if two other members vetoed it, it could easily be rejected if the candidate was considered unworthy.

He goes on to state that the worth of a candidate does not depend upon who proposes the name and nor should the candidate’s political association, if any, be a disqualification. To buttress his argument, he refers to Justices like Krishna Iyer and KS Hegde who held political office before becoming judges, judges who were hailed and revered by the legal community and politicians alike.

He points out how, under the scheme of our Constitution, the Executive is chartered clear authority to administer critical areas such as defence of the realm, internal security, maintenance of public order, taxation, management of fiscal policies and a host of other aspects, touching every aspect of the administration of the nation and lives of its people. He follows this up with a stinging rebuke to his brother judges:
“In this context, to hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy. Such exclusion has no parallel in any other democracy…”

Great conceit and disrespect

If the exclusion of the executive, in the words of Justice Chelameswar, goes against “established principles of constitutional government” and is “destructive of the basic feature of checks and balances”, why then did the Supreme Court appropriate the judicial appointments process? The answer, according to Justice Chelameswar, lies in the mistaken belief that the judiciary is the only defender of the peoples’ liberties.

In the decades since the Emergency, the judiciary, aided by members of the Bar, has carefully cultivated a myth that it was the Supreme Court that was responsible for Indira Gandhi’s defeat and India’s subsequent resurgence as a strong and vibrant democratic polity. Further evidence of this is seen in the judgment of Justice Khehar of the majority, who refers to articles by LK Advani and Mani Shankar Aiyar (predicting a return to the dark days of the Emergency) to support his decision to strike down the NJAC.

Justice Chelameswar seeks to bunk this myth and states in no uncertain terms that in difficult times “when political branches cannot be counted upon, neither can the judiciary. The point sought to be highlighted is that judiciary is not the ONLY constitutional organ which protects liberties of the people.” He rejects the call of his brother judges to exclude members of civil society from the appointments process, going on record to state that the proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks:
“To believe that members of the judiciary alone could bring valuable inputs to the appointment process requires great conceit and disrespect for the civil society.”

Reform or perish

In November 2013, ordinary citizens had the opportunity to present their views on the NJAC Bill to the Parliamentary Standing Committee on Law and Justice. In October 2015, the Supreme Court of India held in no uncertain terms that ordinary citizens of this country were to have absolutely no say in how appointments were made to the judicial branch of government.

The Supreme Court has now dug its heels in. Justice Chelameswar ended his judgment by recalling Thomas Babington Macaulay’s prophetic words to the House of Commons: “Reform, that you may preserve”. The judiciary has emphatically chosen not to and in the days following the judgment, the Chief Justice of India has lauded the Union government for “taking the decision of the Supreme Court in the right spirit.”

On November 3, the Supreme Court has scheduled a set of hearings on how to improve the Collegium system. Let us hope that they do reform, so that this sixty-five year old Republic of ours, built-up so laboriously, may preserve.

Abhishek Sudhir is an academic entrepreneur and founder of Sudhir Law Review.