OVER 76 YEARS, THE CRITICAL MARKER of our constitutional performance has been to what extent the Indian judiciary has capably functioned as a counter-majoritarian institution - that, in turn, determined, by how insulatingly our judiciary has been autonomous. The grand story of our constitutional democracy cannot be told without foregrounding it in the less glamorous historical tale of judicial appointments.
Ever since the establishment of the Indian Supreme Court, coarse conflict between the executive and the judiciary over the issue of appointments has carried the undertone of differing visions of the separation of powers, and of judicial independence. In the Constituent Assembly Debates, it was a fierce debate, with those such as Dr B.R. Ambedkar forwarding a nuanced view on appointments that vouched for judicial independence without necessarily pushing on judicial primacy.
Around that same time, in the summer of 1948, shortly after the second draft of the Constitution was finalised and circulated among High Court judges, in an unprecedented gathering in Delhi of “close to a hundred judges”, a conference memorandum was adopted that pushed for judicial primacy in appointments, making the “consultation” of the Chief Justice of India binding over the executive. However, this brief lobbying attempt could not be successful at that time - the final Constitution draft did not make the CJI’s consultation on appointments binding.
The grand story of our constitutional democracy cannot be told without foregrounding it in the less glamorous historical tale of judicial appointments.
And in the initial years, the tension between India’s first chief justice HJ Kania and Nehru revolved heavily around disagreements on appointments. But the demand made in 1948 eventually manifested in a substantial way in the form of the Collegium system, which was born as a result of the First, Second and Third Judges cases in the 1980s and 1990s. Incrementally, through its own pronouncements, the judiciary reclaimed its role in appointments and moved closer to fulfilling its oldest collective aspiration
“The degree of independence, especially in democratic societies, that a judiciary has,” Pratab Bhanu Mehta wrote, “is itself a creation of judicial power.”
But to what extent, since the 1990s, when the framework of the Collegium was first developed, has the judiciary been able to insulate its own independence? At this juncture in our constitutional history, can we still look at the Collegium, an innovation of the judiciary itself, as a democratic response to the confounding conundrum of judicial independence?
This is a question that is of primacy in the shadow of “democratic backsliding” in India post-2014, which has cast many challenges on judicial independence in appointments. While the executive has not succeeded in legislatively bringing in executive primacy so far, the Collegium, itself, has not raised healthy confidence about the judiciary’s perceived independence, and way, way too many signs demonstrate that opaque, backchannel negotiations are determining how and who is being appointed as judges of constitutional courts.
If the Collegium were the fruit of a formal struggle by the judiciary to strengthen itself, what explains its weakening transformation? How do we reflect on the hypotehsis that the Collegium has, perhaps, “degraded, rather than bolstered the Court’s independence”? Without morally conceding to the concept of executive primacy in appointments, is there a way to consolidate greater judicial independence in how our judges are appointed?
This special issue, marking the 76th Constitution Day, attempts to answer this through autobiographical reflections, analysis of existing processes, and even jurisprudentially asking - what does it mean to seek a fair appointments process in a shrinking democracy?
On the 76th Constitution Day, this special issue seeks to evoke innovative ways of problematising how India appoints its judges.
In a moving autobiographical essay, Justice K. Chandru, who served for nearly seven years as a celebrated judge in the Madras HC, becomes a ‘blood witness’ to the thrilling, winding story of his own appointment to the bench, to tell the story of the Collegium’s “anti-democratic” core. Paras Nath Singh does a deep dive analysis of two documents released by CJI Sanjiv Khanna earlier this year laying bare the full process of Collegium appointments, pointing out that critical issues in transparency still go unanswered. Senior Advocate Raju Ramachandran, with advocates Shruti Narayan and Mohammed Afeef circle in on one particular issue among these - how the continuing absence of a coherent procedure to factor in past conducts of political prejudice by judges remains absent from the appointments process. Scholar Rohit Sarma brings a jurisprudential focus on what judicial discretion can mean in an eroding democracy, and why appointments remains at the heart of that conversation.
On the 76th Constitution Day, this special issue seeks to evoke innovative ways of problematising how India appoints its judges, seek an honest dissection of where the Collegium system stands today, and by framing the right questions, imagine a stronger future for judicial independence.