In Sua Causa

NARENDRA MODI’S ARRIVAL in the prime minister’s office in 2014 heralded tense days for the Indian judiciary. The Bharatiya Janata Party’s manifesto had pledged to “set up a National Judicial Commission for the appointment of judges in higher judiciary.” Within months of the party taking power, both houses of parliament passed the ninety-ninth amendment to the Constitution, to create the National Judicial Appointments Commission. By the end of the year, it was ratified by 16 state legislatures, signed by the president and enshrined in law.

The NJAC, as envisioned, was to have six members, entrusted with control over appointments to the Supreme Court as well as appointments and transfers in all high courts. Led by the Chief Justice of India, it was to include the second and third most senior judges of the Supreme Court, the law minister, and two “eminent persons” nominated by a panel of the chief justice, the prime minister and the leader of the opposition. One of these persons was to either be a woman, or belong to a religious minority, scheduled caste or scheduled tribe.

The new body proposed to supplant the collegium system, which has fulfilled the same purpose since 1993. The collegium, too, is headed by the CJI, but its remaining membership is confined to their four most senior colleagues; there is no representation from outside the Supreme Court. It forwards the names of recommended appointees to the law ministry, which may, via the Intelligence Bureau, scrutinise their backgrounds. Barring any objections from the ministry, the candidates are then appointed to the court by the president. If the ministry wishes, it can send back, with its stated reasons, the names of any candidates it would like the collegium to reconsider. Should the collegium still stand by a candidate and reiterate its recommendation, the president must, despite the government’s reservations, issue their warrant of appointment. (Each high court has its own collegium, comprised of its chief justice and their two most senior colleagues. These nominate candidate judges for their respective courts, whose files must then be cleared by the Supreme Court collegium before they can be appointed.)

The NJAC hoped to give the executive branch of government a direct say in shortlisting candidates for the higher judiciary and, in optimistic eyes, could even have led to some transparency.BR Ambedkar, the main architect of the Constitution, would have preferred this over the judges-only collegium, as he had made clear before his fellow members of the Constituent Assembly. The document the assembly ratified, in 1949, did not leave higher judicial appointments to either the judges or the government alone; it hoped that both would work in tandem to find the most suitable nominees. But that hope was dashed in the 1970s.

“Indira was the worst,” a senior advocate of the Supreme Court told me recently. It is not far-fetched to imagine India’s entire legal community singing that line in unison. Indira Gandhi’s decision as prime minister to install AN Ray as the CJI in 1973—superseding the Supreme Court’s three most senior judges at the time—violated the convention of promotion by seniority that the judiciary has held dear for its entire history. The move was seen as retribution for the superseded trio’s positions in the Kesavananda Bharati case. In it, the Supreme Court, by a narrow majority of a 13-judge bench, had ruled that parliament could not pass any laws that violated the “basic structure” of the constitution; and affirmed, for the first time, the court’s right to strike down any laws that did. Gandhi had not taken kindly to this curtailment of the government’s power.

The pernicious fruit of what Gandhi sowed arrived, most famously, with the Habeas Corpus Case, which followed her declaration of the Emergency, in 1975. Faced with the government’s use of emergency powers to detain its critics without trial, a five-judge bench headed by Ray waved away citizens’ right to appeal their detention before a court of law. Only a single judge dared to dissent.

After the Emergency, the judiciary faced the job of restoring its fallen image. Its response, always invoking the extremes of the Emergency for justification, was the consolidation of the doctrine of judicial primacy—part of which now means that judges must be pre-eminent in the appointment process. This presumed that, if left to itself, the judiciary would automatically produce competent and independent courts; never mind that, even as the abstract doctrine was made reality, comparatively minor but still relentless instances of executive influence over the courts carried on. Step by step, India’s top judges abrogated to themselves more and more of the authority to select and promote their own.

The prospect of the NJAC resurrected old fears. There was some reassurance, though, in the fact that the Supreme Court of 2015 was not the Supreme Court of 1975. The government, theoretically at least, had had no say over the court’s composition for over two decades. And the power of the judiciary had grown such over this period—through the use of its powers established in the Kesavananda Bharati case, through the rise of public-interest litigation and more—that at the beginning of this decade jurists worried about the courts’ interference in the domain of the executive, not the other way around. This time, some hoped, the court would be more resilient.

Then again, the judiciary created by the collegium system had not yet faced an executive of comparable power to that under Modi. The BJP had just secured the first single-party majority in a general election since 1984, when Indira Gandhi’s son had inherited the Congress at its height following her assassination. Modi himself was an unabashed strongman. After the anti-Muslim pogroms in Gujarat, which came during Modi’s tenure as the state’s chief minister, the Supreme Court itself had classed him among “modern-day Neros looking elsewhere when innocent children and helpless women were burning.”

To add to the disquiet, the Rashtriya Swayamsevak Sangh, the BJP’s parent body, had long wanted to inject the judiciary with its Hindutva ideology. A draft proposal for restructuring the Indian government that was circulated at a 1998 conference of the Akhil Bharatiya Vidyarthi Parishad, the student wing of the RSS, proposed the creation of a “guru sabha” comprising sadhus and sanyasis. Among other functions, this body would act as a judicial commission, with the power to nominate and impeach judges of the Supreme Court. This was reported in 2000 by Subramanian Swamy, now a member of the BJP, in a magazine article titled “The RSS game plan.”

That proposal might have seemed fanciful, but Hindutva’s seep into the judiciary was already all too real. Take, for example, the appointment of AK Goel as a judge of the Punjab and Haryana High Court, in 2001. A couple of years after the fact, it was reported that the Intelligence Bureau’s background check on Goel had noted that he was the general secretary of the All India Adhivakta Parishad, the lawyers’ wing of the RSS. Under a field titled “Reputation/Integrity,” the report had noted, “Corrupt person.” The law ministry, then headed by the BJP’s Arun Jaitley, approved Goel’s nomination anyway.

The president, KR Narayanan, refused to sign Goel’s warrant of appointment, and sent his file back to the ministry. Instead of then returning the file to the collegium, Jaitley defended Goel’s nomination himself, and dismissed the IB’s findings as a “slur.” Goel’s file was sent to the president again, this time with the signature of the prime minister, Atal Bihari Vajpayee, attached. Narayanan, now that Goel’s file had come before him a second time, reluctantly signed the warrant of appointment. “I feel that a more desirable course of action would have been to follow the same procedure … where the advice of the Chief Justice, which is integral to the selection process, was sought again and