No country can aspire to greatness and stay as a liberal democracy without institutions that are strong, effective and continuous. It is also well known that any country which wants to gain the status of a beacon of liberal hopes has to protect such institutions. Unfortunately, however, India has enough examples, from Independence to the present day, of politicisation of most of these institutions. The judiciary was just as susceptible to the machinations of the ruling dispensation till not so long ago. The gravest assault on India’s democracy so far—the Emergency—was preceded by a long tussle between the Indira-Gandhi-led executive and the judiciary, over the extent of the legislature’s constituent powers in relation to its legislative powers. When this culminated in the Kesavananda Bharati (KB) decision of the Supreme Court that brought in the “basic structure doctrine”, the executive responded swiftly by superseding the three senior-most judges of the apex court to appoint AN Ray as the Chief Justice of India (CJI). Ray was one of the six dissenting judges in KB, and had held in the Election case that the constituent power of the legislature was above the Constitution itself. Within days of that judgment, he had constituted a 13-judge bench of the apex court to review the KB decision although there was no petition seeking this.
Union law minister Kiren Rijiju‘s “suggestion” to CJI DY Chandrachud to include a nominee of the Centre in the “evaluation committee” under the collegium system is a flashpoint in the ongoing confrontation over judicial appointments. The ruling dispensation seems to have opened multiple fronts, including the vice president and the speaker of the Lok Sabha, to undermine the collegium system of judicial appointments, with potentially grave consequences for judicial independence. To be sure, the collegium system is not without its flaws, and the Supreme Court must address this urgently. Concerns over the transparency of collegium decisions remain, despite the 2017 Supreme Court announcement that the reasons of selecting or transferring a judge will have be put up on the court’s website. Certain collegium decisions of transfers at the High Court level have been quite opaque. Also, the “uncle judge syndrome” is an old complaint, dating back to even the pre-collegium days. But, it can be argued that alternatives, including the present dispensation’s National Judicial Appointments Commission Act, would suffer from the same ailment.
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The minister’s latest suggestion, however, needs to be considered against the backdrop of executive action that led to Kesavananda Bharati and immediately followed this. The collegium system, despite flaws, is a safeguard against executive interference, almost as much as the basic structure doctrine limits majoritarian impulses of the government. We need only look at a jurisdiction like the US to understand the harm that come from political influence over judicial appointments—a majority of Republican-appointed judges in the Supreme Court of that country led to the junking of the Roe vs Wade judgment and the protection it gave to the right to abortion, undermining fundamental freedoms and autonomy for women in that country. India’s collegium system needs a lot more refinement, but judicial independence has to be the bigger goal. No solution can be found by high-decibel noise made against each other using public platforms. To maintain the dignity of both the executive and the judiciary, it is time to sit across the table and thrash out the details. Conflict will only undermine yet another credible institution.