On 16 October 2015, Justice JS Khehar, the current Chief Justice of India, led a five-member bench at the Supreme Court that struck down the ninety-ninth constitutional amendment passed in both houses of the parliament and ratified by 16 state legislatures, on the grounds that it infringed upon the independence of the judiciary. The ninety-ninth constitutional amendment paved the way for the National Judicial Appointments Commission, or the NJAC. The commission was intended to replace the collegium system of appointing judges to the higher judiciary, under which the chief justice of India and their four senior-most colleagues select judges to the high courts and Supreme Court of India. In his leading opinion in the four-judge majority judgement, Khehar was scathingly critical of the NJAC—which would have included members of the government. “The political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary,” he noted, “Reciprocity, and feelings of pay back to the political-executive would be disastrous to ‘independence of the judiciary.’”
Khehar did however tell the government to “help us improve and better the system.” In a subsequent hearing in December 2015, he directed the governmentto come up with a new Memorandum of Procedure (MoP). Since then, the government and the collegium have been butting heads over the formulation of a new MoP for the appointment of judges. Among the issues that marked this stalemate was the government’s insistence on a clause that would block the appointment of a judge on the grounds of “national security.” In a story published on 15 March 2017, the Times of India reported that this conflict has been resolved. According to the report, the collegium, led by Khehar himself, conceded to the government’s demand, ostensibly giving it a “veto power to reject a name recommended by the collegium for appointment as judge.”
This is an unprecedented move with extraordinary consequences. The finalisation of the MoP will certainly fill vacancies in India’s high courts—which are functioning at less than 60 percent of their sanctioned strength—and help reduce the backlog of cases across the country. But it has hardly brought any cheer to the legal fraternity. Kamini Jaiswal, a senior lawyer practising in the Supreme Court, told me that this resolution is an instance of, “Operation successful; patient dead.”
COMMENT