Standoff on judicial appointments: How judges stole a march over politicians on NJAC

NEW DELHI: In the early decades after the adoption of the Constitution, judicial appointments were the prerogative of the government with judges being designated on the recommendation of the President before politically tainted decisions set the stage for the judiciary snatching the right from the executive.

Provisions of the Constitution under Article 124(2) and 217(1) make it clear that while the judiciary is to be consulted, the final say vests with the government with the President appointing judges by warrant under his hand and seal and this is how it was from 1950 to 1993.

The intrusion of political considerations saw the term “committed judiciary” gain currency during Indira Gandhi’s tenure as prime minister, generating a backlash that was strengthened by the Emergency and its aftermath. The executive hold was further tightened with consultation with judiciary being held as not tantamount to consent.

Political developments from Indira Gandhi’s assassination in 1984 to the installation of a Janata Dal government in 1989 to the return of Congress and the appointment of Narasimha Rao as PM saw a string of corruption scandals make news and influence public opinion adversely with regard to legislators and Parliament.



Congress under Rajiv Gandhi lost the 1989 election with the Bofors kickbacks scandal symbolizing the opposition’s agenda. Later, once the unstable V P Singh government fell, the Rao regime was also rocked by cases like cash for votes in a crucial no-confidence motion and the hawala scandal.





The governments of the day found their legitimacy eroded by events like the Babri Masjid demolition and corruption scandals left the political class with little will and moral authority to protest against the judiciary’s moves to appropriate the power to appoint judges.



In 1993, when the Supreme Court ruled that primacy in appointing judges vested with the judiciary, the Rao government was still reeling under the traumatic aftermath of the Babri demolition as it fended internal challenges and the opposition. For much of his tenure, Rao had to deal with the saffron threat as well as efforts of party dissidents to unseat him.

The setting for the UPA’s bid to legislate the National Judicial Appointments Commission bill was not very propitious either as the Manmohan Singh government in its second term found itself battling one scam after another, beginning with the Commonwealth Games and ending with Coalgate. As its political capital drained, BJP saw no reason to help with passage of the NJAC, though it supported the legislation in principle.



Armed with a large majority, BJP felt it was better placed to push through the NJAC and mounted a spirited bid in the court arguments. Passage by state governments bolstered its case, but the SC has tenaciously defended its turf.