Fears that the landmark Supreme Court decision invalidating the government’s move to put in place a National Judicial Appointments Commission (NJAC) may result in a confrontation between the executive and the judiciary are obviously exaggerated. Yet, it will not be out of place to caution those concerned that they should not give room for such speculation. Union Finance Minister Arun Jaitley’s reaction — arguing that “Indian democracy cannot be the tyranny of the unelected” — may have appeared to the Congress as indicating a brewing confrontation. In reality, such responses are useful in advancing the debate on the ideal mechanism to appoint members of the superior judiciary. When as vital a legislative effort as an amendment to the Constitution is invalidated, it is not surprising for elected representatives to wonder aloud whether parliamentary sovereignty had been violated. Chief Justice H.L. Dattu has not only ruled out the possibility of any friction between the two wings of the state, but has also made it clear that the judiciary is open to ideas to improve the working of the collegium system of judicial appointments. The situation, therefore, is more conducive for introducing safeguards against unmerited appointments within the present collegium system. It is also a responsibility that should be shared by the executive, the judiciary and the political class at large.
The Congress has cautioned the government against embarking on a collision course. While it is understandable that as an opposition party it is using the judgment to underscore its criticism that the Narendra Modi regime is undermining institutions, its stand of ruling out support to any fresh legislation to establish a more acceptable NJAC is intriguing. After all, it had supported the establishment of the NJAC. It is another matter if the Congress takes a categorical stand that it respects the primacy of the judiciary in the matter of appointments and favours the collegium system. One cannot but notice that the political parties have not made any positive suggestion or spoken of any consultation on addressing the court’s concern that the NJAC’s intended composition threatened the judiciary’s independence. There has been no call for an all-party meeting or any political discussion on whether Parliament should opt for fresh legislation, or join the proceedings in the Supreme Court from November 3 to come up with ways to strengthen the collegium system. Having asserted its primacy, the court is expected to evolve new guidelines to introduce transparency in the appointments process and insulate it from undue influence from within the judicial fraternity. Such an outcome need not be the last word. Political parties should think in terms of coming up with appropriate legislation in line with the law laid down by the court. Ultimately, an ideal process is one that is rooted in law rather than its judicial interpretation.
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