SC vs Government: For judiciary to remain independent, appointments of judges should be left to SC collegium

Sriram Panchu writes: Leaving the dominant power in appointment of judges to the executive could leave India without an independent judiciary. But judiciary should address concerns regarding opacity of the collegium.

If one employs a limited vision, and a black-and-white filter to thought, the straight answer to the straight question is that the collegium is not a creature sanctioned by the Constitution. (Illustration: C R Sasikumar)

7 min readDec 14, 2022 08:32 PM IST First published on: Dec 13, 2022 at 07:27 AM IST

The Supreme Court’s collegium does not fade easily from the news. First came the Union law minister’s outburst during the Constitution Day celebrations. In response to criticism that the government was sitting on the proposals of the collegium, he reportedly asked what then prevents the Court from going ahead and making the appointments. This was more petulance than good sense, since the Memorandum of Procedure giving effect to the collegium system requires the government to respond to the collegium’s recommendations. He was firmly put in place by Justice S K Kaul who promptly read him the riot act. More surprising was the outburst of Vice President Jagdeep Dhankhar, a lawyer by training, who took exception to the Court striking down the National Judicial Commission Act as though it was outside the Court’s powers. He was offside there; it is very much within the domain of the Court to strike down provisions of an enactment or the Act as a whole if it offends the basic structure of the Constitution, the superior document. It is, of course, open to Parliament to think of another method to select judges, but till that is done and passes constitutional scrutiny, the present system holds the field and no amount of political muttering is going to change that.

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If one employs a limited vision, and a black-and-white filter to thought, the straight answer to the straight question is that the collegium is not a creature sanctioned by the Constitution, and it has upset the method envisaged by the founding fathers to select judges, which was that the President would consult the Chief Justice of the Supreme Court and other judges before making the appointment. For many years since the inception of the Constitution that worked well enough, with the President largely going by what the CJI and his colleagues thought fit. Indira Gandhi rudely upset that balance in 1973 by superseding Justices Shelat, Grover and Hegde to pitchfork A N Ray into the top seat on the heels of the Kesavananda Bharati judgment, which curbed Parliament’s power to amend the Constitution. Her legal assaults on the document and the institution shattered the faith between the judiciary and the executive that must be the fulcrum of constitutional functioning, and it has never recovered since. When nine judges, including J S Verma and Kuldip Singh, authored the Second Judges case judgment in 1993 holding that consultation should be read as concurrence and, therefore, giving the last word to the Chief Justice, they were hearkening to more subtle notes of constitutional music, and picturing a landscape of myriad colours of complexity. Basically, the major premise in their judgments, unmistakably running through lengthy paragraphs, was that leaving the dominant power to the executive would leave India without an independent judiciary. It is an argument not lacking in appeal.

One often hears arguments to the contrary pointing out that in no other country do judges choose judges. That is true, but so is true that in no other country do the courts play such a stellar role in preserving democracy, the Constitution and the Fundamental Rights of citizens as in India. Our high courts’ and the Supreme Court’s writ jurisdiction, cases of citizen vs state, extensive in scope and intensive in application, is testimony to the labours of the judiciary to make this a country of laws over men and a functioning democracy. Day in and day out, the lessons of equality, eschewing mala fides and irrational and extraneous considerations, are administered to the executive at levels low and high in governance. Were it not for our courts, corruption would rule the day. It is the courts which are the major shield against the autocratic and majoritarian tendencies of government, especially when they command absolute parliamentary majorities. In this scenario, if the question is what the needs of the times require as regards the determinative say in the appointment of judges, the compass swings in favour of the judiciary. This is constitutional realism in stark terms, born out of the realisation that checks on government are essential for balance, and an executive which calls the shots will fill judicial slots with impunity with its chosen men.

Since the collegium is a creature of the Supreme Court, and manned only by judges, it requires a near-perfect performance to retain legitimacy. Every misstep gets magnified, with deserving judges like Akil Kureshi being overlooked only because he is anathema to the powers that be, or others who got in because they delight the same powers. This writer has been a vocal critic. But what we do not give it adequate credit for is the hundreds of deserving appointments it has made to the high courts, and many to the Supreme Court, by a processing and evaluating system which involves several rounds of consideration and multiple branches of government. It has tried, all things considered, to get the best available for the job and succeeded to a large extent. We must also realise that the numbers are large and deserving candidates are not in excess.

No knowledgeable and well-intentioned person would now desire executive primacy over judicial appointments in India; we feel far safer with the judiciary. True, it is that we have had a disappointing run of Chief Justices, and some of the recent ones struck a cosy relationship with the government by not hearing major cases and making no contrary appointments. But with the actions of Chief Justice U U Lalit, and the expectations from Chief Justice D Y Chandrachud, that wheel seems to have turned. Perhaps, the fulminations of the law minister are a reaction to that.

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However, the judiciary would do well to realise that the opacity of the collegium is a genuine cause of concern and criticism. One remedy for that with multiple benefits is to co-opt a senior independent member of the Bar, such as the president of the Supreme Court Bar Association, in its deliberations. The Bar’s views on prospective judges are valuable; lawyers often know more than reclusive senior judges about the desirability and its lack of prospective judges. And it will rid the collegium of its tag of insularity. Best of all, the Bench and the Bar will ally on working the collegium, and politicians will be kept at bay; a bunch of judges is an easy target but avoiding tangle with the collective of judges and lawyers is ancient political common sense. And so till a better system is forthcoming after some years, this jugaad method can chug along quite nicely.

The writer is Senior Advocate, Madras High Court