Controversy has been sparked by the public position taken by Justice J. Chelameswar, the fifth senior-most judge in the Supreme Court of India, on the collegium system of appointments to the higher judiciary. Lamenting the opacity of the system, he has informed Chief Justice of India T.S. Thakur of his decision to skip the meetings of the SC collegium till more transparent procedures are instituted. Indeed, the process of judicial appointments is imperfect. It should be made more open. The collegium had replaced the system of executive monopoly, but its own evident shortcomings and failures paved the way for the National Judicial Appointments Commission. In 2015, however, the SC struck down as “unconstitutional and void” the NJAC Act and the 99th constitutional amendment which sought to give politicians and civil society the decisive say in appointment of judges — notably, Justice Chelameswar was the lone dissenting judge on that bench. Now, his public push to revive the debate and push for reform comes in a fraught context.
The trust deficit between the institutions of the judiciary and political executive that had been brought into focus by the SC decision in the NJAC case in 2015 has only deepened since. On more than one occasion, the chief justice of India has publicly expressed his anguish over the stalled appointments of judges and burgeoning vacancies that have paralysed the country’s justice system. The behind-the-scenes wrangling over the Memorandum of Procedure — the apex court had left the task of bringing in a new MoP for judges’ appointments to the government — has confirmed that the overall framework is adversarial, not consultative. It is now becoming clear that the issue is no longer about the collegium vs the NJAC or a version of it. It is a fight for control in the relationship between government and judiciary.
And given the long history of government using the appointments process to tame a judiciary that has served up judgments not to its liking, a vital principle is at stake — of the independence of an institution seen as the custodian of individual rights and a bulwark against the tyranny of majoritarian forms of government in a country of many minorities.
In a context such as this one, Justice Chelameswar’s decision to speak up against the collegium system runs the risk of being read as an effort to strengthen the government’s hand in its effort to win through other means an argument it has already lost in court. A reasoned debate over how to improve the process of appointments to the higher judiciary cannot be conducted in a climate of suspicion. It must wait for a calmer, more sober time.