The Indian Judiciary is Under Attack

In India, the Supreme Court has evolved it’s own system of remaining independent. According to the Constitution, the President appoints High Court and Supreme Court Justices on the advice of the Chief Justice of India and other judges as necessary. But since the President is only a nominal head, his exercise of power must come through the Council of Ministers. So by tradition, it would be the senior most judge of the Supreme Court that would forward the recommendations to the Law Ministry of the Council of Ministers, and the Council would then issue a notification which would be signed by the President.

Over time, a few governments tried to break this tradition- notably Indira Gandhi when appointing Justice AN Ray as the CJI despite his lack of seniority. This led to the Supreme Court feeling the need to protect its autonomy. Over a few decades, through precedents set down in the Three “Judges Cases”, the Supreme Court formalised the collegium system we have today. The CJI and the four senior most judges of the Supreme Court have a binding say on appointments and the Law Ministry must abide by it.

However, over the last few years, we have been seeing increasing instances of this precedent being flouted. While they cannot deny the collegium as that would break the law, the Law Ministry has instead begun to simply sit on the recommendations. Justices KM Joseph and Indu Malhotra both had their appointments delayed so as to prevent KM Joseph from being in line for the Chief Justice. Most recently, the position of Chief Justice of the Madhya Pradesh High Court was given to Ravi Shankar Jha in an acting capacity while the collegium’s recommendation to appoint Justice Kureshi was put on hold. Incidentally, Justice Kureshi had ruled against the Modi-Shah government in Gujarat.

This new tactic is clearly an attempt of the government to influence the judiciary. In the US, the judiciary has become a highly politicised topic due to appointments on an ideological basis, by the chief political force in the country. If we allow the executive to continue its meddling in appointments, we will face a similar situation of polarisation and distrust with regards to judicial authority, which a country like India with its diverse array of opinions simply cannot afford.

By itself, the collegium system is open to its own criticism- the most important being a lack of accountability. As independent as a judiciary must be, its independence does not mean it is unaccountable. A democracy is meant to be built on systemic checks of centralised power, but the collegium is the best example of an extremely powerful institution governing itself.

So indeed I believe there needs to be a check on the system of appointments, but the current subversion is not a good one. By sidestepping precedent, and using bureaucratic delays, the Law Ministry has decided to arbitrarily exercise its influence. There are no specific guidelines or rules to be followed in what the Law Ministry can or cannot delay. Without this, an executive check on the collegium doesn’t improve the situation, it worsens it. Instead of bringing in a new perspective, and ensuring there’s no corruption in appointments, it becomes a game of the executive and judiciary fighting for its choice of appointee.

If the Law Ministry would like to reform the judiciary, let it do so by following a constitutional process. Let them bring in an amendment that the judiciary won’t strike down, or issue guidelines which will be followed when considering whether or not to scrutinise and/or delay appointments recommended by the collegium. The Law Ministry cannot claim to simply want a stake in the process in order to check judicial autocracy if their solution in itself is arbitrary and autocratic.