Mathews J Nedumpara
98205 35428
09.07.2023.

Many of my friends, lawyers, litigants and others who absolutely agree with me that collegium is unethical, undemocratic and led to the hijacking of the judiciary by a few dynasties of lawyers and judges, ask me with a certain amount of anxiety would not the NJAC have led to absolute power to the Modi Government. The concern is even greater in those from minorities. I tell them I myself am a Syrian Christian, a microscopic minority, and would not support anything which will affect the freedom and liberties of minorities.

The moot question is, why even well educated and informed people entertain such a thought. The instant is the classic example of how misinformation, particularly by the print and electronic media, could distort facts.

The collegium is the idea of a few elite lawyers in Bombay and Delhi, Fali Nariman and his ilk, who wanted to control the governance of the country through judiciary. The concept of an all powerful judiciary, the Supreme Court being the most powerful on the planet, which can undo at its will, the will of the people reflected by legislations, even constitutional amendment, is their creation. The founding fathers did not envisage such an all powerful Supreme Court. The core of our constitution is the montesquian philosophy of balance of powers, where neither the legislature, judiciary or the executive, enjoys absolute power. The weak Narasimha Rao Government was an opportune time to capture the power of appointment, by re-writing the constitution in the name of interpretation. They invented a new theory of judicial supremacy. One would be aghast by their ingenuity. They said independence of judiciary is a basic structure of the constitution. That the core of independence is in appointments and not in the protection in deciding cases independently which the constitution has amply safeguarded by providing that even a judge of the High Court can be removed only by an impeachment which would require 2/3rds majority of the members present and voting in both Houses of the Parliament.

Having invented the theory of judicial supremacy as the core of the independence of judiciary, they asserted that in the matter of appointment, the opinion of the Chief Justice of India will have primacy. They invented a new theory that the opinion of the Chief Justice does not mean his personal opinion but of the plurality of judges as reflected in the collegium of judges. Thus took birth the concept of the collegium, the ultimate authority in the appointment and transfer of judges of the Supreme Court and High Court. They further held that their decision, a purely administrative one, which the appointment of judges undoubtedly is, is not amenable to be questioned anywhere, no judicial review will lie because the collegium is omnipotent and infallible. The Government cannot also override it. If it has an objection, it should return the file to the collegium for reconsideration. If the collegium reasserts, then the Government is bound by it.

Shri Soli Sorabji, as Attorney General, through a presidential reference in the year 1999, at the hands of a 9-judge bench got a further seal of legitimacy for this manifest absurdity.

The judicial coupe d’etat which the Judges-2 and Judges-3 cases undoubtedly were, also abrogated the fundamental principle of Parliamentary democracy that the President shall act on the aid and advice of the council of Ministers. Now, the President was required to act on the advice of the Collegium, the Government being reduced to a mere postman.

The absurdity of Collegium was undone by the Constitution 99th (Amendment) Act and the NJAC Act substituting the collegium with the NJAC. The NJAC was a great improvement from the collegium. If at all there can be any criticism against it, it can only be that it was still a body predominantly controlled by the judiciary, mini collegium. It received the assent of both houses of Parliament, the sole dissenting vote being that of a disgruntled Ram Jethmalani. There was no voice of dissent in Parliament or outside. However, soon after the amendment received the assent of the President and was ratified by majority of the states, suddenly came criticism on the NJAC by Fali Nariman, Rajeev Dawan, Aravind Dattar, Prashant Bhushan, et al. They used the Supreme Court Advocate on Record Association as a pawn and. PIL was filed for a declaration that the NJAC was unconstitutional. They had no valid reason, whatsoever in their challenge. They found Joseph Goeebles , the propaganda minister of Hitler, that a lie repeated thousand times would become the truth as their trump card. They propagated that with the coming into existence of the NJAC, the independence of judiciary would be totally abrogated, and hence forth we will have puppeteered Sarkari judges, what is at stake is the liberty of citizens, particularly of the minorities, the Modi Government being totalitarian.

I, at the cost of my practice in Bombay, was present in the Supreme Court for the hearing of the NJAC case, all the 31 days to oppose their agenda to abort the NJAC.

I went there because I realised that the hearing of the NJAC case was nothing but a facade. The real Petitioners were the judges, it was a trial of the goose by the fox. The quashing of the NJAC was, to my mind, a fait accompli. Reaching the court, I realised that I will never get an opportunity to raise my point that the PIL of Fali Nariman is not maintainable because no petition under Article 32 will lie unless a violation of a fundamental right is involved. The SCAORA and others who challenged the NJAC, did not complain of the violation of any fundamental right. Certainly they could not have. The NJAC was a decison on policy about the appointment of judges which is not an issue which is justiciable. In simple words, the PIL was not maintainable and ought to have been dismissed right away.

Their plea was laughable, ‘none of our rights are infringed but the basic structure is violated’. This is an unfortunate fallout of Kesavananda Bharati. It opened the pandoras box by holding contrary to the elementary principles of jurisprudence that only a person whose rights are infringed can approach a court, that any busybody can invoke Article 32.

At great personal risk, i repeatedly raised the issue of maintainability repeatedly and sought recusal of the those judges who were be a part of the collegium and sought the constitution of a bench where none of the judges would be a part of the future collegium.

However, the Attorney General or the Solicitor General, would not raise it, so too, Harish Salve, Venugopal and others representing the State Governments. Harish Salve even said “your Lordship is listening to voices from outside”, clearly implying that except for the elite coterie of lawyers in the Supreme Court, the rest of the lawyers are outsiders.

Outsider’s theory

Very few would have read the NJAC judgement running into 1034 pages. The judgment gives a very interesting reading. The cat was out. What those opposing the NJAC and Rohotgi and company, representing the Government and supposedly supporting the NJAC, privately agreed on was that it brings a role for “outsiders”. The judgment at paragraph 174 at the hands of Justice A.K. Goyal, actually states so. Let me extract from the judgment as infra:

“……Any suggestion before initiation of a name or feedback even after initiation may be useful and may not affect the independence of the judiciary, but equal participation by the Law Minister and two outsiders in the final decision for initiation or appointment can be detrimental to the independence of the judiciary……”

The proposed NJAC had 6 members. The CJI was the was the Chairperson and the two senior most judges are the other two members. Three out of 6 are the judges of the SC. Two other members are eminent persons to be nominated by a Committee consisting of the Chief Justice of India, Prime Minister and Leader of Opposition. The Law Minister is the 6th member. If any two members oppose, the appointment cannot be made. Therefore, any two judges out of the three could veto the appointment of any person preferred by the Government.

The NJAC was struck down on the ground that any system of selection of judges where the Chief Justice and other judges are to sit along with two “outsiders” and at par will, abrogate and destroy the basic structure of the constitution of India.

I wonder how many know that what I have stated above is the constitution of the NJAC and that the real reason for quashing the NJAC and restoring the collegium, a cabal and opaque system where the judges appoint themselves and as time proven, mostly only their kith and kin, their juniors and others well connected.

I would only blame the media, in particularly those exclusively reporting legal news. They purposely give a distorted picture. They hid from the masses that the NJAC is a body where judges still enjoyed an upper hand and was brought in to undo the mistake the collegium which is a synonym of nepotism and favouritism. It reduced the Supreme Court into the Court of Henry II, where a few elite enjoyed absolute and unbridled power, masters of the common people.

Had the NJAC come into existence, it would have notified vacancies, invited applications. A transparent and democratic system of appointment like in IFS, IRS, IAS, or any other public appointment, would have become a reality.

Had the NJAC been allowed to be born and function, any deficiency or shortcomings which would come to the notice of the public, could have been remedied.