Recent comments by Vice President Jagdeep DhankharAnd this Kiren Rijiju, Law Minister, can be read as a concerted attack on the collegium system, the Supreme Court of India, and even the Basic Structure Doctrine (conveniently forgetting that it is this doctrine that has kept the Indian Constitution intact). Clearly, the present government is trying to undermine judicial independence, which it has been doing since it came to power for the first time in 2014. Judicial appointments. But this attack from the government is particularly troubling and completely unfair.
an ‘elected autocracy’
The Supreme Court, conceived as the guardian of the Constitution and the final arbiter of law, has had a checkered history. ghosts of ADM Jabalpur continue to bother till date. While the Indira Gandhi-led government intended to destroy the judiciary during the Emergency, the entire court, except Justice HR Khanna, was also complicit in the erosion of citizens’ rights.
Those dark days seem to be behind us after decades of much thought and reform, both within and outside the judiciary. But what used to worry us has now reappeared to haunt us again.
The current move – an attempt to weaken and discredit the judiciary, as seen in the comments – is part of a larger mission to make the executive the most powerful entity. Today, executive responsibility is a thing of the past, as no one raises any questions about its functions. Since 2014, the government has undertaken a well-crafted, deliberate removal of various institutions and mechanisms that could hold the executive accountable. Its efforts may not be as brazen as those of the Indira Gandhi-led government, but the same goals are being achieved: the state is practically rendered unconscious, and the executive, often, has the upper hand.
Parallels can be drawn with ‘elected autocracy’, where elected governments use integral institutions of democracy to murder democracy and destroy civil liberties. We haven’t heard anything about Lokpal since then. The National Human Rights Commission has been defunct. Investigative agencies are misused at the slightest opportunity, with crackdowns against activists, journalists, students, political opponents, or anyone who protests against the government. The Election Commission of India appears to have clearly compromised. The Information Commission is almost inactive. The list is long and troubling. Others who could hold the executive accountable – academia, the press and civil society – have also been systematically undermined. Universities are under attack. An unbiased mainstream fourth pillar no longer exists in India, and the media mostly acts as a propaganda machine. Civil society is also being strangled slowly but surely.
and a resurgent judiciary
Since the Supreme Court’s decision in 2015 on the National Judicial Appointments Commission (NJAC) Act, the judiciary, especially through the tenures of Justices Ranjan Gogoi and SA Bobde, from the Court under Chief Justice of India (CJI) Dipak Misra Has been passive, even submissive, to the executive. As a result, not even a whisper came out against the Collegium. However, with the last three CJIs, i.e. Justice NV Ramana, Justice UU Lalit and Justice DY Chandrachud, the Court is becoming more assertive and speaking in a non-aligned and confident voice. The executive seems to have assumed that the judiciary is the last bastion and last defender of civil liberties which it must overcome in order to claim its position as the most powerful entity in India.
History tells us that in the early years of modern India, decisions on judicial appointments were usually made on the advice of the CJI. Even though consent was not a consideration, for our founding fathers, an independent judiciary was non-negotiable. BR Ambedkar was clear that there should be no political pressure and consideration in the appointments, but that ‘consultation with persons qualified to give proper advice’ would be appropriate. After this came the Nehru-era.
Both the Indira Gandhi and Rajiv Gandhi governments attempted to manipulate the process. The collegium was created as a historical response to contemporary challenges, and was successful in preventing the executive from taking over judicial appointments. However, I agree that ‘appointing judges by judges’ is never a good idea, and a formal, structured appointment commission with rules and accountability mechanisms is the ideal way forward.
The NJAC law could have fixed this problem but had several loopholes that were structured to undermine judicial independence, including giving vetoes to so-called ’eminent persons’. The Court could have read these loopholes and at least set up an institution that can improve with each selection round. But the government refused to accept any change or amendment in the law. Eventually, the court was forced to strike down the law altogether, leaving us with the collegium system once again.
streamlining appointments
For better or worse, the collegium system is currently the law of the land, which everyone, including the executive, must follow. Instead, we see a defiant government refusing to cooperate with the Supreme Court, let alone consult it. Names proposed by the Collegium have languished for years, only to be eventually returned without ever being formal. The government should also think about its own role in allowing the problem of pendency and vacancies to grow. The main reason for the pendency is poor judicial infrastructure, with very few judges. Court funding is at the mercy of the government, which is either particularly frugal or deliberately stingy in this matter. Similarly, vacancies in the higher judiciary are directly caused by the government’s persistent refusal to accept the names of those who have fallen out of favor, or who have not toed the government’s line.
All these point to the same thing again and again i.e. the appointment system should be fixed. Pending a clear, rules-based system, the current collegium system can also be improved, for example, by well-defined criteria for appointments, transparency and accountability in selection, better methods of assessing candidates for promotion, ways, and better ways to ensure diversity and representation. CJI Chandrachud has a great opportunity to bring about these changes with a two-year term, even in the long term, we strive for a well-structured and balanced law on a judicial commission that upholds judicial independence. Brings transparency without compromising on
Till then, pending cases and infrastructure issues should be taken up in appropriate forums, such as conferences of chief justices, or meetings between the prime minister and the CJI. Press interviews or parliamentary addresses are not the appropriate stage for this, and only serve to stoke bitterness and reinforce the view that there is no cooperative spirit in the government.
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We can rest assured that the leadership of the Supreme Court now appears to be in good hands and is resisting the pressure and attacks in a dignified and restrained manner. If the government continues to stonewall, perhaps the judiciary should find ways to persuade or compel the government to follow the law of the land. This is the best the Supreme Court can do to protect democracy, and for the betterment of Indian citizens.
Ajit Prakash Shah is former Chief Justice of Delhi High Court and Madras High Court and former Chairman of Law Commission of India