My sweet lord, don't place yourself above the people

From independence till 1993, the government picked judges for the higher judiciary, including the Supreme Court and various high courts. In 1993, the Supreme Court in a controversial judgment arrogated to itself the right to appoint judges through a collegium system.

According to this judgment, neither the executive nor the legislature would have a say in the appointment of judges. Only a collegium made up of Supreme Court judges would choose judges for the higher judiciary. This was an unprecedented judgment. As legal scholars noted, it could lead to judicial autocracy, nepotism and arbitrariness.

The Constitution has no provision for a collegium system. And yet the collegium system was not seriously challenged for 22 years except for one public interest litigation (PIL) filed in January 2013. Previously, in 1998, a question of law against the collegium system had been raised by then President KR Narayanan. Their Lordships remained unmoved.

In August 2014, the new National Democratic Alliance (NDA) government mounted the first serious challenge to what most legal scholars have termed the "cosy, clubby" collegium system. Monitoring judicial performance, including redressing delays in court cases (there are three crore cases pending across the lower and higher judiciary in India) and enforcing judicial accountability was clearly a desirable reform. All of these would come under public scrutiny, as they should, through the National Judicial Appointments Commission Act. It was passed by both houses of Parliament through the 99th Constitution amendment and given presidential assent on December 31, 2014. The Act ended the 22-year-old collegium system.

Today's Supreme Court verdict has held the NJAC Act unconstitutional and reinstated the collegium. The matter will now inevitably go back to Parliament which may amend the NJAC Act and seek its review by another Constitution bench of the Supreme Court.  

All this will take time. Meanwhile, judges will continue to be vetted, chosen and appointed by their brother judges. Under the NJAC, a panel of three Supreme Court judges (including the chief justice of India), two eminent persons (both non judges), and the law and justice minister would form the selection panel for judicial appointments. The two eminent persons would be nominated by a committee comprising the chief justice of India, the prime minister and the leader of the opposition.

This is similar to the judicial appointments system in most democracies. For example, in the United States Supreme Court, judges are appointed by the US president and then confirmed by the Senate (counterpart of the Lok Sabha). In Britain, judges are selected by an independent committee comprising several judicial commissions. These recommendations are sent to the British prime minister. The prime minister makes the final recommendation to the Queen for formal appointment of judges.

Judges in India have an exalted status. But that does not place them beyond scrutiny. They are essentially public servants performing a public duty at the behest of, and for the benefit of, the public they serve.

Corruption and nepotism in the judiciary is a touchy subject but in a democracy where people are supreme, the Supreme Court must subject itself to public scrutiny. By choosing to maintain an opaque collegium system (which even today's Supreme Court verdict conceded needed improvements), the judges have placed themselves above the people. In a democracy that is unconscionable.