When Emergency was declared, the Supreme Court, too, was stacked with a new set of judges. In particular, AN Ray was appointed as chief justice by the president, superseding three judges who were senior to him — he was noted as one of the judges who had not signed the Kesavananda judgement. Under him, the landmark judgement was revisited with a bench of 13 justices. The hearing of the case was conducted over two days — it was soon discovered that no review petition had actually been filed, with the review initiated over an oral request — an improper process, leading to the chief justice unilaterally dissolving the bench. The basic structure doctrine survived, barely — despite the Centre having a committed judiciary. For India, the landmark judgement helped tip the balance away from autocracy to democracy.
Recently, there has been confrontation between the Centre and judiciary on the interpretation of Article 124 (2) and 217 (1) of the Constitution. Article 124 (2) highlights that every judge of the Supreme Court will be appointed by the president after consultation with such of the judges (in particular, the chief justice) of the Supreme Court and of the high courts in the states as necessary. Similarly, for high courts, Article 217 (1) highlights that every judge of a high court will be appointed by the president after consultation with the Chief Justice of India, the governor of the state, and the chief justice of the high court. Judicial interpretation in SP Gupta vs Union of India (1981), the Supreme Court Advocates-on Record Association vs Union of India (Second Judges case) (1993) and Article 143(1) … vs Unknown (Third Judges Opinion) (1998) has further evolved the principle of judicial independence and led to a collegium system for recommending judges.
Currently, the Centre can accept or reject recommendations made by the collegium system — however, if a recommendation was reiterated, the government was obliged to accept it. More recently, this consensus has given way to a stalemate, as the Centre stalls recommendations reiterated by the Collegium — on November 22, the Supreme Court pulled up the government for not following timelines laid down in the Second Judges Case; the Standing Parliamentary Committee on Law and Personnel has also highlighted its disagreement with the Department of Justice that the time for filling vacancies cannot be indicated.
The net effect of this historic tussle between the independent judiciary and overweening Centre has been a decline in the capacity of India’s judicial system — in August 2022, there were approximately three vacancies (of 34) in the Supreme Court, along with about 381 (of 1,108) vacancies for judges in the high courts. The lower judiciary had about 5,342 (of 24,631) seats vacant, accounting for 20 per cent of its capacity. Such vacancies, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna and Rajasthan are bound to have an impact on judicial efficiency (with about four crore cases pending, as of August 2022).
Of course, judicial reform is long pending. Select countries have the appointment of judges by political institutions (for instance, parliament, executive) — in Italy, appointments to the Constitutional Court are made by the president, the legislature and the Supreme Court, with each entity allowed to nominate five judges. In the US, Supreme Court justices are nominated (for life) by the president and then approved by Senate via a majority vote. The German Constitutional Court is appointed by the Parliament (each House gets four appointments in each of the Court Senates) with a supermajority vote (2/3). Naturally, this can lead to a partisan judiciary.
Beyond this, judicial elections have also been utilised to enhance the accountability of the judiciary — a variety of states in the US using elections for judicial appointments to the State Supreme Courts. However, this can incentivise judges to give populist judgements and lead to judicial capture by special interest groups. This can also mean gridlock — not advisable for any democracy with a tendency towards coalition government.
Other countries have experimented with judicial councils (often comprising of existing judges, representatives of the Ministry of Justice, members of the bar association, laymen etc) — in Iraq, all judges are graduates of a Judicial Institute, with all applicants undergoing written and oral tests, along with an interview with a panel of judges. In the US, the state governor appoints state judges based on recommendations provided by a merit commission. In Japan, the Supreme Court Secretariat controls lower-level judicial appointments, along with their training and promotions. The UK too has moved from such a system towards a judicial commission. More recently, the Centre pushed for judicial appointments to be conducted via a Judicial Commission (National Judicial Appointments Commission Bill, 2014) — on October 16, 2015, the Supreme Court struck down the NJAC Act (2014) with a 4:1 majority, while highlighting that it was open to greater transparency in the collegium system — in particular, making the collegium more transparent, fixing eligibility criteria for appointing judges and debating whether an empowered secretariat was required to appoint judges.
Further reform can build on this. The Collegium system can continue; however, a secretariat may be empowered to select and recommend candidates, with the Executive continuing to hold power to appoint judges. The secretariat could be staffed with current judges, members of the bar association, representatives of the law ministry and laymen and should push for greater representation of our society in the judiciary — as of December 2022, there were only three women and two SC judges in the Supreme Court.
Beyond judicial appointments, there is a clear need for having a new Court of Appeal (refer PIL by V Vasanthakumar). The Supreme Court was never intended to be a regular court of appeal against orders in high courts (Bihar Legal Society vs Chief Justice of India, 1986) — the Supreme Court should not be hearing bail applications. Instead, as recommended by the Law Commission, we need to have a Federal Court of Appeal, with branches in major metros. Meanwhile, the Supreme Court should be transformed into a Constitutional Court (via a constitutional amendment) — doing this would mean fewer cases (about 50, anecdotally) being kept pending at the highest level. Additionally, we must push for a defined retirement age, say 65, for all judges, whether at a high court or Supreme Court level — post retirement, there should also be a mandatory cooling off period for judges to be nominated to roles in government.
Judicial independence continues to be important for the health of India’s democracy. A credible and impartial system of appointing judges is necessary to achieve judicial independence. Any appointment must ensure judicial accountability, fostering a judiciary which, at an individual and systemic level, is independent from other branches of government. Such a judicial system should be detached from political ideology and public pressure and also from the hierarchy within it. As we push for this, we should avoid a committed judiciary.
The writer is a BJP Lok Sabha MP
"Of course, judicial reform is long pending," writes Feroze Varun Gandhi. (Express Photo: Prem Nath Pandey) 
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