Opinion Randeep Surjewala writes: Government’s objections to Collegium system flow from a desire to avoid accountability – not a higher standard of justice

Government’s agenda is clear: To stifle an institution that is vested with vast powers under the Constitution to check and review the excesses of the Executive

What is most surprising is how the government is drawing attention to its own failings by claiming that the Collegium system is responsible for delays. (Express photo by Prem Nath Pandey/File)

Randeep Singh Surjewala

January 17, 2023 04:37 PM IST First published on: Jan 17, 2023 at 04:37 PM IST

In the last two months, the ruling regime has unleashed a carefully crafted and pre-meditated campaign to capture yet another democratic institution. Law Minister, Kiren Rijiju has launched a series of attacks on the collegium system of judicial appointments. These range from accusing it of delays to questioning the legal basis for the judicial appointments process. His statements have been supported by the Vice President who has gone a step further calling out supposed “judicial posturing” and emphasised the need to respect “parliamentary sovereignty,” thereby virtually questioning the supremacy of the Constitution as also the power of judicial review over the executive and legislative actions.

The timing of these statements is no coincidence. Despite the government’s best efforts, it has found that the Supreme Court cannot be “tamed” as easily as other institutions. It was the Supreme Court which struck down the government’s attempt to deny the Indian people their fundamental right to privacy. It was the Supreme Court which directed the holding of floor tests in Karnataka and Maharashtra, both of which were being delayed for purposes apparent to everyone. It was the Supreme Court which curtailed the unexplained and expansive use of Aadhaar. It was the Supreme Court which intervened in Arunachal Pradesh when President’s rule was imposed without the due process of law. It is the Supreme Court and various high courts that have called out hate-mongering. It was the Supreme Court which passed an order to prevent the government from giving extensions to the ED Chief without the authority of law. Our Supreme Court is far from a perfect institution but at its best, it is a guardian of our Constitution and our democracy.

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The government’s concerns, therefore, flow not from a desire for administrative expediency or a higher standard of justice. They flow from a desire to be not held accountable. For eight years, the BJP government has displayed a clear pattern of attempting to undermine and subordinate institutions. Posts such as those of the RTI commissioners were kept vacant and then reluctantly filled after the Supreme Court’s intervention. The Lokpal was appointed after a similar intervention in 2019, 5 years after it was championed as a game changer by the BJP at the time.

Serving officials perceived as incompatible with the ruling regime’s interests have seen their tenures cut short, such as former CBI chief Alok Verma or have been treated unceremoniously such as former Election Commissioner Ashok Lavasa,

Members of the higher judiciary are treated no better. Two recent examples are those of Justice S Muralidhar and Justice Akil Kureshi. The former was suddenly transferred while he was in the middle of hearings during which he sought accountability from the Delhi police on the Delhi riots. The latter did not become the Chief Justice of Gujarat High Court despite being the seniormost judge of that high court and then was denied elevation to the Supreme Court despite being the senior-most chief justice in the country. It is this record of subversion and abuse of power by the ruling dispensation that renders their current diatribe clearly suspect.

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Democracy, with all its checks and balances, is an inconvenience for tyrannical governments. Those who may have doubts about this need only look at how Parliament has been functioning over the last eight years. The highest institution of democratic accountability is gradually being pushed into irrelevance. Sensitive bills are classified as Money Bills, regardless of content, to prevent voting in the Rajya Sabha. Notably, the Prime Minister never answers questions or motions seeking accountability and takes the floor only to take potshots at the Opposition.

In the NJAC case, one of the strongest grounds for striking down the National Judicial Appointments Commission was that the government is the single largest litigant before the Supreme Court. There is thus a clear conflict of interest. The Court argued that such interference would violate the “Basic Structure” doctrine which provides for the Separation of Powers between the Executive, the Legislature and the Judiciary.

Now consider the last eight years. They have compellingly demonstrated the current regime to be one that constantly prioritises its own political interests and parochial ideology above those of “we the people”. It is a regime that cannot tolerate criticism and mercilessly deploys the might of the state and its agencies such as the ED, CBI and Income Tax Department for personal score-settling against its opponents and critics. Above all, it is a regime whose DNA is founded upon divisiveness, and which survives by pitting one section of Indians against the other.

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In this light, the Supreme Court’s concerns of political overreach hold especially true.

What is most surprising is how the government is drawing attention to its own failings by claiming that the Collegium system is responsible for delays. According to a response given by the Law Minister himself in December 2022, there are currently 6 vacant judges posts in the Supreme Court and 333 vacant judges posts in the High Courts across the country.

Yet on November 28, 2022, the Centre returned 19 of 21 names that had been recommended by the collegium for appointments to various High Courts. What is striking is that 10 of these names were reiterations, meaning the Collegium had overruled the concerns expressed against these names previously and asked for them to be cleared. By way of its order dated December 8th, 2022 the Supreme Court reiterated the position of law as laid down in the Second Judges case to say that the reiterated recommendations of the Collegium are “binding” on the Executive. Any other government would have been embarrassed. Instead, the present dispensation upped the ante on its public tirade against the judiciary.

The intent and purpose are clear. To stifle an institution that is vested with vast powers under the Constitution to check and review the excesses of the government. For those who stand atop a legacy of distorted history and propaganda, it is understandable that the last vestige of accountability would cause such an enduring grievance.

The author is a Congress Member of Parliament, Rajya Sabha and an advocate