When I read the news that Chief Justice T S Thakur got emotional and cried on a public platform over the delay in the appointments of judges to the courts, I, as a sensitive, sensible and concerned citizen of the country, too was almost moved to break out into an extreme guffaw.
But first a backgrounder:
For those of you whose knowledge of the workings of judiciary is limited — I include in this statement many who are employed within the judicial system — judges to the courts are appointed after following a rigorous two-step process:
1) The courts go on a long summer vacation.
2) They reconvene, and at some point during the rest of the year: A team of senior judges makes a list of persons who can be appointed as judges and passes on the same to the government, which has to approve it.
You have to agree that it is a pretty transparent and simple process, for those who are part of the process.
The team that chooses the judges, especially for the highest court, is named the ‘collegium’, based on the well-established judicial tradition of using words that make no sense anywhere else.
The collegium system had been in vogue for long till two years ago when the government –- yes the same government comprising people in high posts who have the authority to hike their own salary –- thought that the set-up of judges-choosing-judges for the higher judiciary seemed anomalous and came up with a remarkable alternative, which was to appoint a National Judicial Appointments Commission (NJAC) that included, among others, the Chief Justice of India and two other judges of the apex court.
Okay, the NJAC also featured the Union Law Minister and two other ’eminent’ persons. On the face of it, eminent persons could be anyone with a half-decent central nervous system. But not to leave anything to ambiguity, it was decided that the two ’eminent’ persons will be nominated by — this is pretty commonsensical — again by a committee consisting of the Prime Minister, the leader of the Opposition in the Lok Sabha and –- why not? –- the Chief Justice (The Chief Justice’s FB profile reads: Employed at attending committees).
Anyway, the Constitution too was amended to give NJAC full statutory backing. But a set of lawyers and lawyer associations challenged the constitutional validity of NJAC and a Bench of the Supreme Court took the reasonable decision that forms the crux of all jurisprudence, which is to adjourn the case to a future date.
No, on a serious note, when the case first came up, the Supreme Court, with extreme sagacity, pointed out that to strike down NJAC there had to be NJAC in the first place. The thing is at at that point of time NJAC had not officially come into being (the government was still to notify the NJAC Act then).
But in October last year, a 5-member Constitutional Bench of the Supreme Court did strike down the NJAC Act and in support of the decision came up with a few Latin phrases. Stop me if I am wrong here, but from what I infer this is what the judgement essentially meant: a set of judges were called to make a decision on whether to stick with the system of judges-choosing-judges is right or not. And the judges decided that the setup aimed at replacing the judges-choosing-judges system was unconstitutional.
So, as of now, we are now back to the collegium system even though the Supreme Court has made it clear that it was ready for bringing in more transparency and decided that it would henceforth operate from inside a glass house.
Okay, that was a weak joke. The situation has now veered towards coming up with a — jargon alert — Memorandum of Procedure, which is a document that the government will prepare as a guide for the appointment of judges to the higher judiciary, and this MoP will be handed over to the two ’eminent’ persons who are now without any work as the NJAC has been struck down.
Again, I am only kidding. The MoP will be handed to the Chief Justice for taking the final decision in the matter. So we have made some progress: From the system of judges-choosing-judges to the system of judges-choosing-judges with the promise that they will change it provided the others come up with an alternative which the judges have to approve.
*End of Backgrounder*
As I said, I was almost moved to break into a laughter.
On second thoughts, I adjourned it.