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An estimated 4-minute read
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The thing with independence is that it’s very hard to get it back once it’s been lost. Likewise, the National Judicial Appointments Commission (NJAC) genie, once unleashed, would have been very hard to tame were it to ever run amok in one, 10 or 100 years from now.

That must have weighed heavily on the minds of the Supreme Court judges who struck down the constitutional amendment that sought to give the executive a say in the selection of judges.

They had to make a decision not for their own careers, status or power, not just for all future generations of judges, but for the entire country.

Ignore everything else, including the hundreds of pages of lengthy reasoning in their judgments and the criticisms that the five judges stepped beyond their legal authority by usurping the “will of Parliament”, and it is clear that the judges felt that keeping the status quo, however imperfect, was preferable to ceding this one line in the sand.

In their defence, the judiciary is more than just another arm of the bureaucracy or the state.

In a democracy such as India, judges are one of the last protections that has existed against government excess. They have not always fulfilled that role, but, particularly under powerful chief justices, the Supreme Court and high courts, together with the media, have sometimes had the guts to act as the conscience-keepers of India, ensuring basic human rights for the disadvantaged or in battling corruption or in holding the government to account.

It is no surprise that for elected parliamentarians from whichever party, such an unpredictable column of the state which exists outside the party system has been a thorn in the side.

It is, therefore, almost laughable that so much parliamentary and judicial time has been wasted on something that was always clear would run into resistance from the judiciary, particularly in the lop-sided form that it was eventually passed that gave politicians and vaguely defined “eminent persons” extraordinary influence on who will be the judges of the future.

The NJAC promised exactly one reward—slightly better judges—but it was also pregnant with the possibility of creating future benches with neither teeth nor backbone.

The risk of a coterie of pliant judges being appointed is perhaps theoretical at present, but in a democracy such as India’s that still struggles with political corruption, patronage, hereditary rule, nepotism and a brush with totalitarian rule under the auspices of democracy still in living memory, why run that risk?

It is a fact that the collegium system is far from the biggest problem the Indian legal system faces. Sure, a few judges were corrupt and a few were incompetent, and a few were appointed for dubious reasons.

The problem that is bigger than all others, because it goes to the very heart of the system’s effectiveness, is the ever-growing pendency of cases that even the best and cleanest and most transparently appointed judges under the NJAC wouldn’t be able to do anything about.

To be fair, the collegium was unable to do anything about that either, as they failed to appoint an adequate number of judges, as the data in today’s analysis shows. But the blame for that cannot be laid at the doorstep of the judiciary alone because it is the result of years of neglect and mealy-mouthed initiatives by the executive, such as the ever-in-limbo national litigation strategy, which was aimed at reducing government litigation.

Compared with the tribulations of the NJAC, beginning to fix the system would not have been hard.

Step 1: Force the collegium system and the courts to become transparent; if they are unwilling to do so voluntarily, by mandating the publishing of some information relating to judicial appointments and strictly enforcing the judiciary’s consistent dodging of the ambit of the Right To Information.

Step 2: Eliminate the possibility for the more petty forms of corruption in courts by increasing judges’ pay (see Mint of 7 July 2015: Why judges deserve a salary hike ), which would also automatically increase the attractiveness of the judiciary as a career.

Step 3: Invest in judges’ skills and continuing education, by supporting and enhancing state and national judicial academies.

Step 4: Appoint more judges, lots of them (by giving the collegium the logistical support required to make good and speedy selections).

If you speak to judges privately, most didn’t even like the collegium very much. High court or district judges hoping for appointment to a higher court, for instance, might usually have been better off consulting an astrologer about their prospects of getting a ‘promotion’ to a higher court instead of trying to ‘read’ the collegium like tea leaves.

If one good thing did come out of the debate on the NJAC, it was a wake-up call to the judges, ushering in a much overdue period of introspection and debate about the future of the country’s judicial function, which has all too often managed to hide behind a veil of superiority and arrogance.

In the NJAC judgment, several Supreme Court judges have admitted to errors in the collegium’s ways, and expressed hope that the system can become more transparent, accountable and objective in the future.

If nothing else, those statements should give us some hope that the system will improve, as well as some sympathy for the devil we know.

This article was first published by Mint.

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