Opinion Centre vs Supreme Court: Collegium black box needs sunlight but government overreach is not the answer

Union Law Minister Kiren Rijiju’s letter to Chief Justice of India D Y Chandrachud “suggesting” that the government should have a greater say in the process of appointments to the higher judiciary is an extremely problematic proposal. It also comes in a fraught political context. The proposed inclusion of a government nominee in a new “search and evaluation committee” which will shortlist names and make recommendations to the High Court or Supreme Court Collegium, seeks to change the present system in which names are vetted by the Collegium, which comprises senior judges. That is, the government is trying, through the new Committee, to turn the clock back and re-insert itself into a process over which judicial primacy was formalised in 1993 with the Second Judges Case, and reiterated in 2015 with the Supreme Court striking down the constitutional amendment to bring in the National Judicial Appointments Commission. What is more disturbing is that the law minister’s letter appears to be part of a concerted attempt to redraw the line between the executive and the judiciary to the former’s advantage.

In recent weeks, Minister Rijiju has made other statements criticising the court for delays in appointments and pendency of cases. Though he holds a constitutional post, Vice President Jagdeep Dhankhar has pitched in, targeting the court by painting its decision on the NJAC as violative of “parliamentary sovereignty” and questioning the “basic structure” doctrine that mandates the court to review and restrict Parliament’s powers to amend the Constitution’s foundational principles. These interventions have sharpened apprehensions that the government is trying to use its popular mandate to subdue non-elected institutions, especially the judiciary which is the centrepiece of an intricate system of checks and balances. The judiciary is the custodian of individual rights and freedoms, and it also protects the space for minorities against a transgressing state or unbridled majoritarianism. Any move that results in weakening the independence of the judiciary, or one that rearranges the separation of powers in a way that gives the executive the right of way, therefore, is rife with unhappy consequences in a constitutional democracy.

Advertisement

To be sure, the Collegium system of appointments of judges is not perfect — there is ample room for reform. As the judiciary appoints its own, it needs to cast its net wider, and make the criteria and process of decision-making more open and inclusive. There is opacity in the working of the Collegium, and a glaring lack of diversity on the bench. The representation of Dalits and women, for instance, needs to go beyond tokenism. The Collegium black box needs to open itself to ensure accountability and transparency in a manner that doesn’t undermine its institutional processes. Certainly, the Collegium has its work cut out. But it must be allowed to do it without an overweening executive breathing down its neck. As for the ruling BJP — which held aloft the court’s clean chits to its government on issues ranging from demonetisation to EWS quotas and Rafale at its national executive meet — it must know that any injury to the legitimacy of the court will be at the entire system’s peril.