In Indian democracy, the catechism of culpability is currently probing the motivations of two important institutions. Who will judge the judges? Who will govern the government? These questions define the power struggle between the judiciary and the executive; one defends its authority while the other imposes it. With omniscient leaders pursuing their vision of history, the establishment is determined to extend its control over all institutions, including the judiciary. Convention, caution and calmness have given way to activist aggression after prominent political paladins and including an erudite and outstanding advocate, Vice President Jagdeep Dhankhar, unprecedentedly questioned the right of judges to define judicial architecture.
So what's the current ballyhoo about? A three-member Collegium headed by the Chief Justice of India selects the names of judges proposed by a collegium of High Court judges. But neither a High Court nor the Supreme Court will consider a name until it has collected all relevant information about each candidate through Central and state government agencies or its internal mechanism. The founding fathers of the Constitution, espousing the separation of powers and checks and balances, may not have envisaged a legislature and executive becoming more powerful than the judiciary.
Of late, judicial pronouncements about excessive executive power and legislative overreach are met with savage scorn and pugnacious powerplay, although none of the stakeholders is seeking accountability for the number of cases rising nationwide, massive judicial vacancies, an expensive and exclusive legal system, the erosion of institutional integrity and collapsing court infrastructure. Instead, the legislative is intent on packing the benches and appointing an ideologically committed judiciary.
The government is in no mood to accept the judiciary's supremacy over issues in the executive domain. Vice President Jagdeep Dhankhar, himself a lawyer by profession, vented, "The historic NJAC Bill, passed unanimously by the Parliament, was undone by the Supreme Court using the judicially evolved doctrine of 'Basic Structure' of Constitution. There is no parallel to such a development in the democratic history of the world. A glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people. We need to bear in mind that in a democracy, 'Basic' of any 'Basic Structure' is the primacy of the mandate of the people reflected in the Parliament".
His comments reflect the disposition of the political class and a section of civil society. Law Minister Kiren Rijiju, another advocate by education, firmly believes that the collegium system is alien to the Constitution. He warned, "Never say that the government is sitting on the files, then don't send the files to the government, you appoint yourself, you run the show then". The Supreme Court was outraged. Its second senior most judge Sanjay Kishan Kaul reportedly told Attorney General R. Venkataramani: "I have ignored all press reports, but this has come from somebody high enough……." and "If we have to, we will take a decision."
During a hearing Justice Kaul and Justice Abhay S. Oka pronounced, "If we look at the position of pending cases for consideration, there are 11 cases pending with the government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is of vintage September 4, 2021 as the date of dispatch and the last two on September 13, 2022. This implies that the government neither appoints the persons nor communicates its reservation, if any, on the names."
Since the Supreme Court struck down the 99th Constitutional Amendment 2014, which sought to replace the collegium system with National Judicial Appointments Commission (NCJA), it has been at loggerheads with the government. The standoff led to massive vacancies in the lower judiciary and High Courts. Over 40 per cent of High court vacancies were vacant at one point.
Before 1991, High Court judges were chosen by the respective High Court's Chief Justices, but the final say lay with the Chief Minister and the governor, who would forward the names to the Centre. The executive could veto names, leading to undesirable and politically connected persons infiltrating the judicial system. Intelligence reports on prospective judges were mostly drafted in the offices of CMs, the Union Law Minister and the Home Minister to assure the selection of favourites and rejection of adversaries.
Subsequently, in three different verdicts, the Supreme Court took away the executive's judicial appointment powers and set up the Collegium. From 1998 to 2014, politicians ranted against the judiciary usurping the powers of the legislature and the executive when the SC began to reject government-sponsored names.
After Narendra Modi's sweeping victory in 2014, the NJAC Act, which tilted the balance of power in favour of the executive, was deployed. A major section of the legal community suspects that the government's intention to change the system emanates from the fact that by 2024, 19 of the 32 odd Supreme Court judges and over half of the High Court vacancies would be filled under Chief Justice D.Y. Chandrachud. While its members keep changing, Chandrachud will continue to preside over the Collegium. The briefness of CJI Uday Umesh Lalit's term prevented appointments due to disagreements among Collegium members. A litany of uncharitable views about the Supreme Court castigating the government over the protection of human rights followed. For example, SC kept in abeyance the amendment to section 124A of the IPC, which granted police unbridled powers to detain government critics. Since the government will make crucial legislation and decisions over the next two years, politicians feel that a system is needed where elected representatives have a say in selecting judges who won't block populist welfare schemes and crucial legislation without proper explanation. While the SC feels that it has the power to lay down the law, the executive considers it an encroachment on the powers of the legislature.
Imposing legislature complete supremacy has dangerous implications. The elected executive represents less than 50 per cent of votes polled by the winning party. An independent institution like the Supreme Court scrutinizes its actions and ensures Constitutional integrity. The top Indian judiciary currently enjoys much more credibility and respect than those who make and implement the law. It represents the entire India, and not an ideology (100 per cent of voters) is required to check the authoritarian avarice.
In a democracy, unbridled power is toxic. Any assertion that enshrines executive veto and abrades accountability debases the very idea of democracy. This applies equally to the judiciary. The ongoing battle, if not resolved amicably, will devastate the eroding credibility of both and sow chaos. To scrub clean the high walls of justice stained by self-serving or inept judges, slavish magistrates and a pliable police force, the purity of justice must be restored at all highest levels. It is the executive's responsibility to uphold the reputation of institutions, not upend it. It is the judiciary's obligation to let the legislative have its legal say. Repair the bridge between the two. The rest will follow.
Follow him on Twitter @PrabhuChawla