NJAC can be a check on judicial monarchy

The courts often speak of sunlight being the best disinfectant, but the very operation of deciding who sits in the Supreme Court remains shrouded in secrecy

- Pinky Anand

Long etched in Indian political and legal history shall remain the dissenting words of Justice Jasti Chelameswar in the National Judicial Appointments Commission (NJAC) case. He asked of his brother and sister judges: "We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?"

Almost a decade later, it is introspection hour for the judiciary, and Justice Chelameswar's questions retain their relevance. The Indian experiment with separation of powers has never been one of separating the executive, the legislature, and the judiciary into independent silos, with distinct discharge of their democratic functions, and complete independence. On the contrary, the Indian model has been of checks and balances and holding to account the organs with respect to their pure democratic purposes, in accordance with the rule of law.

The judiciary has painstakingly made clear that the principle of parliamentary sovereignty and absolute independence doesn't find much credence in our constitutional set-up. The jurisprudence emerging from constitutional courts sees the judiciary often traversing areas of legislation and policy towards constitutional ends. The same judiciary, which finds no discomfort in such travel into the parliamentary domain, struck down the NJAC amendment on purported grounds of parliamentary and executive interference in judicial appointments. Now, the collegium wishes to eat its cake and have it too!