In the 75th year of Independence, the Government of India has chosen to celebrate this landmark with a series of events around the theme of “Azadi ka Amrit Mahotsav”. Truly there is much to celebrate about our first 75 years as a constitutional democracy. The right to vote in regular elections and an orderly transfer of power after elections to the winning party or coalition of parties, both at the national and state level, have become a part of our public life that we take for granted.
Indian democracy has endured and thrived not just due to elections but also due to a vigorous and feisty tradition of public debates on current issues of vital importance at all possible platforms of civil society, including in Parliament and state legislatures, in the media, academia, and last but not least, in the courts of law. The ongoing debate over the method of appointment to the higher judiciary falls squarely in this rich democratic tradition.
It began in November last year with the Union Law minister questioning the 2015 judgment of the Supreme Court in the NJAC case that struck down a constitutional amendment and upheld the Collegium system of appointments to the higher judiciary. It was swiftly followed by a sharp retort from several judges of the Supreme Court. This was then followed by an intervention by the Vice President of India, where he questioned the wisdom of the basic structure doctrine that underpinned the 2015 judgment. This in turn has invited a public response from the Chief Justice of India, where he proclaimed the basic structure doctrine to be nothing less than the North Star of India’s constitutional democracy.
What are mere citizens and lowly minions of the Indian state to make of this debate between the highest functionaries in the constitutional scheme of things? After all, the Constitution does begin with “we the people”.
The basic structure doctrine in constitutional jurisprudence evolved over time in a process that culminated with the Kesavananda Bharati verdict in 1973. It has been reiterated and expanded upon in various judgments since then. Its central feature continues to be the view that the power of Parliament to amend the Constitution under Article 368 is not absolute and it shall always be subject to the power of judicial review vested in the Supreme Court, especially under Articles 32 and 142, as well as to the restrictions imposed by Article 13 of the Constitution.
The power of judicial review is explicitly established in almost all constitutional democracies around the world. Even the basic structure doctrine is now acknowledged by many countries. However, the courts in India added a twist in the tale in 1993 by creating the Collegium system of appointments to the higher judiciary. The underlying argument was a novel take on the basic structure doctrine. The argument ran as follows. Protecting the basic structure was essential to preserving the rule of law under the Constitution. Protecting the power of judicial review was essential for preserving the basic structure doctrine. The power of judicial review could not be meaningfully exercised without an independent judiciary. The Collegium system was essential to preserving the independence of the judiciary. Hence, the Collegium system was required for no lesser purpose than protecting the Constitution of India. Q.E.D.
As things stand today, especially after the 2015 judgment, the Collegium system is the law of the land. And unless the Supreme Court itself is persuaded otherwise, it is likely to remain so. However, 30 years is a long enough period to evaluate its impact on the composition and performance of the Indian judiciary, the quality of justice delivery on the civil and criminal side, and its larger impact on democracy and civil society. Perhaps what is required is a comprehensive survey of all the above-mentioned parameters by the Ministry of Law and Justice.
Whether one is for or against the Collegium system, certain questions are inescapable. Has the Collegium system promoted diversity and inclusion in the higher judiciary? Has it led to faster appointments in the higher judiciary or has it led to a higher proportion of vacancies? How has it impacted the pendency of cases and the time taken for disposal of cases in high courts and the Supreme Court? Has the Collegium system been biased against candidates from the subordinate judiciary? Does it favour the kith and kin of serving and retired judges, and the kith and kin of senior advocates? What has the Collegium system done to make justice more affordable and accessible to the common man? What is the performance of the Collegium system with regard to judicial corruption? Can the Supreme Court give itself a decisive say in the power of judicial appointments, and shy away from addressing the above questions about judicial performance?
The basic question of whether the Collegium system is essential to preserving the basic structure of the Constitution cannot be answered by the Supreme Court alone through a judicial verdict. It requires a wider conversation. There’s no doubt that the credibility of the Supreme Court as the defender of our fundamental freedoms and protector of constitutional values would be enormously enhanced if it constructively engaged with other branches of the state on the above issues. After all, along with judicial review, the separation of powers and checks and balances are also important features of the basic structure of the Constitution as elucidated by the Supreme Court.
The author is a serving IPS officer. Views are personal
