After CEC, will there also be a change in how judges are appointed?

The govt may now come back with a modified version of the NJAC bill whereby the practice of judges appointing themselves is stopped

The Supreme Court has done the right thing by ordering that the Chief Election Commissioner will henceforth be chosen by a committee comprising the prime minister, the leader of the opposition and the chief justice. This is more-or-less of a piece with what, first, the Venkatachaliah Committee in 2002 and then the National Judicial Appointments Commission bill in 2016, had suggested for the appointment of judges. 

The first, which became a bill in 2003, could not be presented to parliament as it was dissolved. The second was passed unanimously by parliament, but the Supreme Court struck it down, saying it was unconstitutional. 

But now, with this ruling, the Court may have scored a self-goal because sooner or later, people are bound to ask what about you, your lordships? Why can't judicial appointments also be made by such a committee rather than a group of judges called the collegium?

So it's very likely now that the government will come back with a modified version of the NJAC bill whereby the practice of judges appointing themselves is stopped. It could well happen during the life of this Lok Sabha. 

Remember: the 2016 law was passed unanimously, and the BJP had fewer seats in parliament than it does now. Besides, it must be snorting and looking to retaliate. 

Be that as it may, the judgement raises an even larger question now being discussed in the US, albeit still at the level of academic enquiry. The question, broadly, is this: in a system of separation of powers, if one branch stops being effective, how should the other branches respond?

In the US, it's the legislature that is seen to have become ineffective for a variety of reasons. In response, the executive has stepped in or is trying hard to. The judiciary has stayed aloof. 

You will quickly see how similar this is to the Indian situation where the judiciary has stopped being effective — case backlog and waywardness — and the executive has stepped in to take corrective action. To make things worse, our legislature, too, has become ineffective, forcing the executive into taking what has been described as "undemocratic" actions as with ordinances. 

This has happened at various levels, in various ways, and in various circumstances. We can all find examples. The result is a babel consisting of "I am right, you are wrong" type of polarised debates, which are not helpful at all. 

A friend and I have been discussing this governance problem for a long time. A few days ago, he sent me a paper by Ian Shapiro, a highly respected American legal scholar at Yale University. The paper is about the vacuum created by the gridlocked legislature and the presidency's attempt to fill that vacuum. 

The issue he discusses is this: "Recent years have seen the emergence of a new strand of public choice arguments, reaffirming the old scepticism of legislatures but suggesting that enhanced executive power offers a solution to the alleged maladies."

He says this could end up in "authoritarian presidentialism in the American system. Executive aggrandisement is a consequence of decades of institutional malfunction, worsened by right-wing attacks on legislative capacity." 

He adds that "change is not likely to come from the Supreme Court." Were the Court so inclined, it could do a lot to restrain the imperial presidency, including through a revival of the nondelegation doctrine. But the separation of powers jurisprudence has moved decisively toward increasing presidential control of the administration.

Comparisons should not be stretched but it does look as if the American separation of powers principle applied to a Westminster model leads to strange governance outcomes. We have been experiencing those outcomes since the late 1960s.