MORE THAN SIXTY YEARS after the Constitution came into force, India is still struggling to appoint judges in a way that is consonant with both its foundational legal document and its democratic ideals. The current system—long criticised as unconstitutional and undemocratic—has done little to ensure the independence of the judiciary or a sensible balance of power. In the wake of the country’s recent regime change, and public controversies over the selection of Supreme Court and high court justices, some critics, including the senior lawyers Rajeev Dhawan and Prashant Bhushan, have warned that the problematic status quo may soon give way to a situation in which the executive branch of government uses every means at its disposal to influence appointments to the country’s top courts.
As they hammered out the Constitution between December 1946 and November 1949, the document’s eminent chronicler Granville Austin wrote, India’s Constituent Assembly members grappled at greatest length with the question of how to ensure an independent judiciary. Judges had to be insulated from political influence, but subject to a system of checks and balances that would preserve the country’s democratic principles and prevent the judiciary from wielding untrammelled power. To that end, it was almost unanimously agreed that the process of appointing judges to the Supreme Court and the high courts would be a consultative one: the president, representing the Indian people, would elevate candidates only after conferring with the chief justice of India and other senior judges.
But ever since the Indira Gandhi-led government launched a withering attack on the judiciary in the 1970s, India has been appointing judges to its higher courts through a process that, in one way or another, has undermined the consultative principle. This, in turn, has been part of a larger, longer-running battle over who should ultimately control the Constitution—Parliament or the Supreme Court. In the current system, in place since the early 1990s, a changing group of five judges headed by the chief justice of India, and known as the collegium, effectively controls appointments, having usurped that power almost entirely from the executive through a series of questionable rulings. The process is notoriously secretive, leaving no room for public scrutiny of individual nominees. As a result, the Indian public knows very little about the 25 men and one woman who currently serve on the Supreme Court, or about their recent predecessors. Nor is there space for a larger democratic debate about the criteria on which judges ought to be selected.