India is the largest democracy in the world thanks to the sacrifices of millions of freedom fighters. We must eternally be grateful to them as a nation. But our gratitude will be worthless if we are tardy in preserving our democracy and the freedoms accompanying it.
Amongst the constitutional institutions designed to protect democracy, pride of place is enjoyed by the Indian judiciary. The nation, citizens and the judiciary must guard against the dilution of its independence. Yet, there is little doubt that the judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.
In 1993, the SC held: “The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.” It also held that no such appointment can be made unless it conforms with the opinion of the Chief Justice of India (CJI).
A novel mechanism — the Collegium, consisting of the CJI and the four senior-most judges of the SC and high courts — was devised to ensure that, “the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.” The raison d’etre for this decision was “the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the ‘rule of law’, essential for the preservation of the democratic system.”
The Court declared: “The Constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection”. It added: “It is obvious that only those persons should be considered fit for appointment as judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge” and had “legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes.”
Thus, by judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law. So far so good.
The current Collegium in the SC, comprising Chief Justice N V Ramana, Justice R F Nariman, Justice U U Lalit, Justice A M Khanwilkar and Justice D Y Chandrachud, is the dream collegium. Soon, Justice Nageswara Rao will join the group after the retirement of Justice Nariman. Together, they form a formidable force, alive to the serious implications of their constitutional obligations.
Sadly, instead of selecting the best from amongst those available, compromises appear to have been repeatedly made in the past. Candidates lacking in essential attributes have been appointed routinely.
The framers of the Constitution were alive to the likely erosion of judicial independence. The Constituent Assembly debates provide insight into their thinking.
On May 23, 1949, K T Shah stated: “I think it is of the utmost importance that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence…”
B R Ambedkar reassured the house, saying: “With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself…”
But on November 25, 1948, Bakshi Tek Chand feared that “with the advent of democracy and freedom, the necessity of this reform has become all the greater… now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the free administration of justice.”
If this was the fear in 1948, what can we say in 2021?
In the 2016 judgment striking down a constitutional amendment for creating the National Judicial Appointments Commission, the SC strongly disapproved of any role for the political executive in the final selection and appointment of judges, saying, “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary. The Court felt that “reciprocity was a debt and a powerful psychological tool which was all but impossible to resist.”
Justice H R Khanna, the great judge who stood with the citizens during the Emergency, in his book Neither Roses nor Thorns writes: “One of the new trends was the change in the approach of the Court with a view to give tilt in favour of upholding the orders of the Government…” .
M C Setalvad, the first and the greatest attorney general, in his book My Life — Law and Other Things, has criticised appointments made by former chief justice S R Das as “unfortunate” and “commented upon adversely”. He sums up, “I have always believed in the Bar helping to preserve the memory of Judges, who the Bar have learnt truly to admire and respect” and “only such judges deserved their portraits in the gallery”.
Having been at the Bar for over four decades, including as the President of the indomitable Supreme Court Bar Association thrice, I must confess there have been few judges worthy of justifying portraits in the Bar gallery.
My Lords, there is a heavy burden on your shoulders. One can only hope and pray that you will discharge it to the best of your abilities and in consonance with your constitutional oath.
This column first appeared in the print edition on July 9, 2021 under the title ‘The judicious choice’. The writer is senior advocate, Supreme Court and former president of the Supreme Court Bar Association.
Amongst the constitutional institutions designed to protect democracy, pride of place is enjoyed by the Indian judiciary. 
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