The SC Bench hearing the National Judicial Appointments Commission (NJAC) should simply strike it down on technical grounds and not venture into its merits this time.

The collegium theory is headache-inducing!

The theory that gave rise to the collegium system for appointment of judges to the higher judiciary in this country is a theory that should garner the prize for the most headache-inducing legal theory in the world. Period.

Paradox

I am not a fan of the collegium system. Nor am I blind to all the horror that awaits an appointment regime under the current Government. So, what shall we choose? The paradox here is much like a choice between a democracy that gives you the freedom to express yourself while not insuring you against starvation and a totalitarian system that takes care of your hunger while not giving your soul, the space to express itself.

The collegium theory is built on an assumption that the executive will be less assertive:

The collegium theory rests on one simple assumption – that the executive will simply abide by this theory without any defiance.

In practice, over the past twenty years, that assumption has held good. Incidentally, over the last twenty years or so, no single political party had held a majority in the Lok Sabha on its own and one might be readily excused if he correlates the two to say what I say later in this piece.

Will there be executive defiance now?

So, what if this Central Government would tell the Supreme Court hearing the challenge to National Judicial Appointments Commission Act, 2014 (NJAC) – “if you traverse beyond your legitimate judicial function and reiterate the collegium system this time, you will invite defiance and that is what you will get from the Executive this time”?

Let us assume that the Central Government would say so tomorrow or the day after. What should the Supreme Court do then? Worry? I don’t know. But, I will suggest this much:

Strike it down on technicalities only

The Supreme Court should strike down the NJAC purely on technical grounds and not invite any defiance from the Central Government for now. How?

Simple. Article 124 of the Constitution never spoke of any such thing as a collegium. The Supreme Court in 1993 evolved the collegium system as its response to protect the basic structure of the Constitution against executive interference; this arrangement was not made in response to any specific language in any provision of the Constitution. So, it was terribly unintelligent on the part of the Parliament to assume that the collegium system could be overcome simply by amending Article 124 of the Constitution.

Defective drafting

Notwithstanding whatever amendment the Parliament would make to Article 124 of the Constitution, it had a clear task of recognizing that the collegium system was not tied to any particular language of Article 124 and that a Bill to abolish the collegium system had to necessarily say something to the effect that ‘notwithstanding anything contained in any judgment of any court …or…..any arrangement or framework by whatever name called evolved by any court in response to what it considered as necessary to safeguard this Constitution…the arrangement prescribed in this Bill shall abolish and override all such arrangements’. We do not see any such ‘overriding’ or what essentially is a ‘confrontation’ clause in the NJAC. Period.

So, I would suggest to the Supreme Court to strike down the NJAC on the ground of defective drafting only, for now. If the Central Government would want to cure that defect and let the Parliament re-enact a new amendment to the Constitution and to the NJAC Act and then send it to the States for ratification, it would essentially be incurring lots of political fatigue.

The collegium theory has nothing of the law in it; it is merely a political theory

And, I should readily be excused for suggesting that the Supreme Court Bench hearing the NJAC challenge should not be too naïve and assume that the collegium theory is best advanced by reiterating it again.

To begin with and to end this discussion, I must say that the collegium theory is not a legal theory at all; it is nothing more than a political theory and for its continued survival, it would require the existence of a less assertive political executive.

So, the collegium theory cannot be helped at all by grandiose arguments over its merit in the face of an assertive executive.

Not recognizing the inherently political nature of the collegium theory would hurt the very existence of the collegium.

The SC Bench hearing the NJAC challenge will have to simply recognize that a proper judgment this time is one that will not address the merit and would drive an assertive executive into more political fatigue – while remaining true to the judicial oath.