Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism.

In 1993 during Narasimha Rao’s minority government, a quiet declaration of judicial independence occurred; justice JS Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy occurred, it would be filled by someone pre-approved by the judges and the executive could only object if cogent grounds existed. If, despite executive objection, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointed elite. Within the elite, the power to recommend appointment belonged to a super-elite called the collegiums.

In 1998,during the Vajpayee government, on a presidential reference, the court defined the collegiums thus: “The opinion of the Chief Justice of India… has to be formed in consultation with a collegium of judges. Presently, and for a long time now, that collegium consists of two senior-most judges of the Supreme Court. The principal objective of the collegium is to ensure that best available talent is brought to the Supreme Court bench.”

The judgement also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of Chief Justice and the four senior most judges of the Supreme Court…” Separate collegium of three senior-most judges was provided for appointment of High Court judges.

The collegium system also ensured that judges were not beholden to any political party. A bold judgment could end up unseating the most powerful of politician or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes, seen but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium system. It brought a constitutional amendment bill to provide for constitution of National Judicial Appointment Commission (NJAC)—an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. The commanding NDA victory in 2014, saw the Modi government revive the proposal and Parliament amended the Constitution, brought about the 99th Amendment to provide for setting up NJAC. Subsequent ratification of 20 states was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendments. Going by experience by earlier experience of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity of finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, it was a decisive blow. The court by a 4-1 majority, struck down the 99th amendment. Justice Kehar’s judgment concluded that NJAC did “not provide an adequate representation to the judicial component” and that “clauses (a) and (b) of Article 124(I) are insufficient to preserve the primacy of judiciary in the matter of selection and appointment of judges”.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th amendment failed constitutional scrutiny. The court has reinstated the collegium system as clearing house of all judicial appointments to the constitutional courts. It also decided to have further hearing in November to iron out wrinkles in the working of the working of the Constitution. (IPA Service)