NJAC vs Collegium Debate — Putting a Grinding Halt to Justice Delivery

The NJAC vs Collegium debate is heating up.

After Law Minister Kiren Rijiju upped the ante, VP Jagdeep Dhankhar used the freedom of speaking in the Parliament to release a broadside almost threatening the judiciary to fall in line. Things cooled down a bit after Rijiju was shifted, but it is a recess before it will be raked up again.

Now any government that is like the current one in India, with an absolute majority and maximalist tendencies, efforts to take control of the judiciary are expected.

Even if we ignore how courts have been completely overrun by the likes of Erdogan in Turkiye, trends have shown that courts almost always leave space to the legislature when there is tension.

The reason? Well, courts do not have a bunch of acolytes to sing paeans, and judges can’t speak. Look at how the likes of Bibek Debroy are batting for the removal of “contempt of court” as it affects the parties, but are silent about “contempt of legislature”.

Back to the issue — on the tussle.

There is no denying that the collegium system is not perfect. It is opaque, nepotism can well happen, and as citizens, we should have both visibility and a role in their selection. There is no better evidence to see the ills than finding how the judicial system has become a family affair at the highest levels.

So reform is necessary. And possibly courts can hear out the government’s view rather than outright throwing away the recommendations for the National Judicial Appointments Commission (NJAC), in the name of violation of the fundamental structure of the constitution.

India had a system where the executive had a determining role in selecting judges. Unfortunately, it was undone by Indira Gandhi, who twice superseded judges at will to ensure the protection of her interests. And the Collegium system was initiated.

With a significant number of vacancies even in the higher judiciary (more than one-third), the government regularly sending back the Collegium recommendations, and the Supreme Court standing on the decision to dismiss NJAC, the tussle is going to intensify.

It is however not going to be easy for the government to have its way. Though not having people on the streets, the judiciary of India is still trusted by a margin vis a vis the legislature and executive. And even totalitarian and authoritarian governments across the world need courts for validation of their actions.

That brings us to the question — why is this urgent now?

Well if we assume that the ultimate objective of the Sangh is to achieve Hindu Rastra, any changes in the constitution towards that effect will be tossed out by the Supreme Court in the name of “violation of the fundamental structure”. With D Y Chandrachud as the Chief Justice, it is even more likely.

But, if we assume there is a plan, the time is running out.

On one side is the 75th year of independence, the Amrut Kaal, and all the marketing, it is a moment. Also, the 100th anniversary of the Sangh is coming.

But I suspect the bigger issue is how much time Modi has.

Modi is 73 years old now. And while there is no retirement age in politics and one can go one, time is ticking.

It has taken Sangh a long time to get someone like Modi who enjoys unprecedented popularity, has faith in the people, and has the articulation to communicate. Maybe the one who ever came close was Shyama Prasad Mukherjee and Atal Behari Vajpayee. No one else.

So if this is to be made, the BJP needs a pliable court to look away, and Modi to communicate.

The second one is real and present, the first one to be attained.

Is that the reason for the urgency of a confrontation?

But this is a story where the side note is more important than the note itself.

Though after a long time, the Supreme Court has the full bench, the High Courts have more than 30% vacancies. And things become worse in the lower courts.

And we all hear about the 40 million pending cases, years of pendency, the prohibitive cost, the overall judicial inefficiency, and more often than not, indifference.

Making legal redressal a cruel joke for many, while the politics plays out. Brazenly.