Union law minister Kiren Rijiju has an unexceptionable observation that the collegium system was alien to the Indian Constitution, and though Supreme Court lawyer Harish Salve was annoyed that Mr Rijiju had crossed the “lakshman rekha” by saying the Supreme Court should go ahead and do the appointments if they think that the government was sitting on the files. Mr Salve is as strong a critic of the collegium system as Mr Rijiju. What Mr Salve found objectionable was the manner of expression of the law minister. Mr Rijiju said that the collegium system arose from a 1991 judgment. But the minister seems to have forgotten the political context. It was the anti-Congress groups, including the political Opposition, that were keen that the appointment of judges should not be the prerogative of the party in power. As the Congress was then the party in power, it was felt that the Congress’ prerogatives in the matter of appointing judges should be clipped. Everyone was harking back to Indira Gandhi’s “constitutional sin” of the supersession of the judges in April 1973 when she appointed
A.N. Ray as the Chief Justice superseding senior judges J.M. Shelat, K.S. Hegde and A.N. Grover. There was an outcry that the government was creating a pliant judiciary. When she returned to power, her then law minister P. Shiv Shankar sent off a letter on the transfer of judges. This was again seen as executive interference, which translated into political meddling. It was the clamour in later years that the courts should be insulated from political interference that led to the emergence of the collegium system. In many ways, the BJP is bearing the burden of its own excessive zeal of keeping the Congress out of judicial appointments.
On the face of it, the collegium system is indeed untenable in principle in a democratic system. But it is not a simple issue. The question of how one is to preserve the independence of the judiciary is at stake. It appears that Mr Rijiju is indeed citing principle because the Narendra Modi government is feeling enraged at its helplessness that it has no say in the matter of appointing judges and transferring them. If the Congress wanted judges whom it looked upon favourably for ideological and other reasons (and in the Congress’ case it was more the other reasons that mattered than ideological ones), the BJP wants judges of its ideological hue: so-called nationalists, Hindu-minded in some ways, and ready to adopt stances towards religious minorities which can be termed as majoritarian. Of course, Mr Rijiju cannot reveal the real motives of the government and the party he represents. It is also no crime for Mr Rijiju, or others in the Modi government, including the Prime Minister, if they want to push their ideological agenda. They feel entitled to do so because they have won a mandate in the elections, and they feel it unjust that an unelected Supreme Court should come in its way. This was also the argument of Indira Gandhi and the Congress in the 1970s, and before her of Jawaharlal Nehru in the 1950s. Nehru and Indira Gandhi were candid in putting the argument for populist democracy. The BJP and Mr Modi don’t have the intellectual and moral courage to state their scorn for the rule of law. Mr Rijiju’s main motive in questioning the collegium system is political more than constitutional.
But critics of Supreme Court judgments of the past few years, including those of the Babri Masjid-Ram Janmabhoomi property dispute case, the triple talaq case, and that of ongoing cases about religion conversions show a majoritarian tendency, and say the Supreme Court is indeed moving towards the rightist end of the ideological spectrum. Of course, the judges, past and present, would argue that ideology never comes in the way of deciding cases and justice is the supreme end. Given human frailties and predilections, it is perhaps wiser to acknowledge the existence of “bias” in the judges and the times in which they are living. About 20 years ago, editor-crusader Arun Shourie wrote a polemical work on the Indian judiciary and its unforgivable sin of social activism. It may not be out of place if someone were to write a book on the changed biases of the judiciary in the times of Hindutva.
Having taken note of the political furore surrounding the judiciary, it is but natural that the judiciary is a point of heated debate in a democracy like ours, and the issues the collegium system raises should be addressed as reasonable as possible, and without making the foolish assumption that there should be no politics in this discussion. The collegium idea is not as indefensible as it may appear. Take the case of doctors, architects, engineers, chartered accountants. It is the professional associations of such groups that set standards and good practices. It can’t be argued that doctors, architects, engineers and CAs should not decide on their own about themselves. So, it may be justified for lawyers and judges as well to some extent. In the growing field of arbitration, this is how the system will work itself out.
However, law and justice are not just technical issues. It involves politics, people and democracy. This is recognised in discussions of jurisprudence as well. Thus, in a democratic constitutional framework, the judiciary’s interaction with the executive and the legislature becomes inevitable. The theory of separation of powers helps maintain the limitations within which each of the three will have to function. The separation of powers does not mean that each can be a law unto itself. Independence of the judiciary can’t be guaranteed by insulating the process of appointment of judges from the other two branches. There is a need to ponder how this issue can be settled. And there is no avoiding the political process. The Americans have preferred an openly political process, where the appointment of Supreme Court judges is decided on partisan lines. A Republican President with a Republican majority in the US Senate can appoint a conservative judge, and similarly a Democratic President with a Democratic majority in the Senate can appoint a liberal judge. Should India consider that option, or should it stick to the stolid British way of appointing men and women with established credentials of moral and intellectual integrity. The commissions and committees to appoint the CBI director and the National Information Commission have gone the partisan way. The collegium system, therefore, remains an acceptable compromise....