A change of guard at the office of the Chief Justice of India (CJI) on November 9 seems to have triggered a reorientation of the Union government’s strategy towards the Supreme Court. Justice D.Y. Chandrachud, the new CJI, carries a reputation of being a liberal judge with a strong and independent voice, notwithstanding his role in the 2019 Ayodhya-Babri Masjid case judgment that handed the Bharatiya Janata Party its biggest legal and political victory. The Union Minister of Law and Justice, Kiren Rijiju, seems to have discovered his voice to coincide with the new CJI’s appointment. In the last few weeks, he has displayed a keen sense of urgency in his attempts to set right the democratic deficit that has for three decades plagued the process of appointments to the higher judiciary.
In parallel, the Supreme Court has taken up the question of inaction on the part of the Union government in notifying recommendations made by the collegium, which is a flagrant violation of the law settled by the court in two cases in the 1990s. On Monday, after the Bench expressed displeasure at some of the comments Mr. Rijiju had made about the appointments, news emerged that the Union government had returned 19 recommendations to the collegium hours before the proceedings.
It is a fact that the Supreme Court remains obstinately committed to the collegium system of appointing judges with little regard for criticism from within and outside the legal fraternity. In interviews to the media after his retirement, the former CJI, Justice U.U. Lalit, categorised the collegium as the “perfect” system to protect the independence of the judiciary. Given such statements, it is hard to fathom an immediate change in the court’s position.
These developments have to be seen not just as attempts to reform a flawed system of appointments, but also as a strategy by the government to continue exercising the informal veto it has usurped in recent times by stalling collegium recommendations or forcing modifications in them. This plan is in anticipation of a reversal in the cozy relationship the Union government has had with preceding Chief Justices.
A sustained diatribe against the court from a Union Minister, who has been appointed by a government with a big majority and popular support, will erode confidence in the appointed judges and delegitimise the institution. The court must tackle this threat head on.
Blame on both sides
In 2015, a Constitution Bench of the Supreme Court struck down constitutional amendments that Parliament had effected to create the National Judicial Appointments Commission (NJAC). The court’s central argument was that by removing the primacy of the judiciary in the new appointment process, the NJAC subverted the independence of the judiciary, a key component of the court’s conception of the basic structure of the Constitution.
At the same time, the court acknowledged that there were problems with the collegium system that required intervention. This led to separate proceedings by the same Bench in which the court appointed a two-member committee of senior lawyers, one of whom was a government law officer, to compile suggestions received from the legal community. The government also put its suggestions in writing. After deliberations, viable inputs were to be incorporated into a new Memorandum of Procedure (MoP) for judicial appointments.
However, the Union government, through the Attorney General Mukul Rohatgi, took the position before the Bench that the right and power to frame the MoP was squarely in its field, going by the court’s judgments that created the collegium system. The court accepted this position and closed the proceedings, providing the Union government broad guidelines on what the MoP may focus on: eligibility, transparency, formation of a secretariat, and complaints redressal during the process. What happened to the 11,500 pages of suggestions received by the committee is anybody’s guess. Media reports indicate that the court and the government could not find a common ground over these reforms to the MoP. Thus, the process went into cold storage.
In the meantime, the government’s response to the striking down of the NJAC was inaction — it began to stall appointments. While Mr. Rijiju took exception last week to criticism from the court that the government was sitting on recommendations, this is exactly what the government did. It belligerently opposed names it did not like and even ignored reiterations by the collegium, which, as per the law, are binding on the government. An important case was that of Justice K.M. Joseph in 2018. When he was eventually appointed, he lost the seniority he would have got with the original recommendation as the names were split by the government for appointments.
On the other hand, the Union government made no attempts to revive the NJAC through Parliament by filling the gaps that the Supreme Court had pointed out in its 2015 judgment.
The tendency of recent CJIs to not agitate the government over these omissions, despite the deleterious effects on the institution, aided the continuation of a delicate calmness in the court-government relationship. The change of guard at the office of the CJI seems to have brewed a storm that threatens to disrupt this calm.
In many countries, the judiciary has been the first target of regimes that seek to strengthen their hold over power. In Hungary and Poland, in recent times, there have been overt attacks on these institutions. Such attacks have changed the powers and composition of these institutions and turned them into courts conducive to the executive’s policies. The process of appointments to the higher judiciary remains a highly contested field. Frontal attacks on the process serve as indicators of democratic backsliding.
In India, the court has tried to resist this process, albeit through the flawed method of the collegium system. The process, initiated through a much-criticised reinterpretation of the appointment provisions in the Constitution, fails to fulfil basic demands of transparency and accountability and remains prone to charges of nepotism. There is also a serious lack of social diversity in the appointments.
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However, Mr. Rijiju’s comments are setting the stage for a new normal that could eventually lead to the delegitimisation of the court. The question that it leads to is this: can judges appointed through an opaque, democratically deficient process deliver judgments that can be legitimately accepted in a democracy? Coming from a government seeking control of judicial appointments, this is a dangerous road to embark on.
The antidote to this problem would be for the court to voluntarily take up reforms to the collegium system and expedite the creation of a new MoP by incorporating the legitimate concerns of the government and stakeholders at large. This is the only way to remove the sting out of the attacks.