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.
Now, there are signs that the balance of power in judicial appointments may soon shift—although not necessarily for the better. The recently botched elevation to the Supreme Court of Gopal Subramaniam, a senior lawyer and former solicitor general of India, was a bellwether of this change. Subramaniam, who is 56, was nominated by the collegium this May; its members apparently felt that the court would be well served by this lawyer of hitherto unimpeachable integrity. But in a stunning reversal, given Subramaniam’s reputation, in June the government sought to overturn his nomination by sending it back to the collegium.
The ostensible reason for this step was leaked to the public via unsubstantiated media reports: the Central Bureau of Investigation (although it had previously engaged him as counsel on numerous occasions) and the Intelligence Bureau (although it had earlier cleared his name) apparently raised questions about Subramaniam’s character. The government made no formal comment. It was well known, however, that Subramaniam, as amicus curiae in the Sohrabuddin fake encounter case (in which senior members of the ruling Bharatiya Janata Party, including its new president Amit Shah, have been implicated), played an important role in attempting to check alleged authoritarian excesses by the Gujarat government during the period it was headed by Narendra Modi. Ultimately, many commentators believed, it was this willingness to challenge the government that led to Subramaniam’s rejection.
India’s is not a straightforwardly majoritarian democracy. The judiciary is meant to ensure that all Indians are accorded the same fundamental rights and are treated with equality before the law—even if doing so conflicts with the will of the political or cultural majority at the time, as expressed through the other branches of government. Fostering a judiciary with the strength of character to fulfil this role, and the intellectual capacity to engage with the complexities of jurisprudence, ought to be an essential concern of the appointments process. Under current law, it is the executive’s prerogative to ask the collegium to reconsider nominations, as is in keeping with the general principle of checks and balances. But spurning the nomination of a well-regarded lawyer without offering any official comment subverts both this principle and the counter-majoritarian purpose of the courts. By borking Subramaniam, the government seems to signal its willingness to compromise the independence of the judiciary, and an intention to claw back control over appointments. As Subramaniam put it in a letter to the Supreme Court’s chief justice, RM Lodha, “The events of the past few weeks have raised serious doubts in my mind about the ability of the Executive Government to appreciate and respect the independence, integrity and glory of the judiciary. I do not expect this attitude to improve with time.”
In this unsettling milieu, Abhinav Chandrachud’s new book, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India, is both timely and illuminating. Using qualitative and quantitative analysis, Chandrachud, a doctoral student at Stanford University law school, unearths a distinction between “Indian constitutional law on the books and Indian constitutional law in action.” Beneath the veil of secrecy shrouding judicial appointments, he discovers a set of defined but informal yardsticks that the collegium relies on to make its nominations. Chandrachud doesn’t address the important questions of whether these criteria promote or hamper judicial independence, or if the collegium system is in keeping with a robust separation of powers; but his study allows us to engage with such questions in a concrete way for the first time. His book reveals that the Supreme Court, in its dogged commitment to the collegium and its standards, may threaten the very independence it has long sought.
THE BASIC THEORY of a tripartite separation of powers—between the legislature, executive and judiciary—was first put forward in the eighteenth century by the French philosopher Montesquieu. It asserts that the autonomy of the courts is the greatest protection against the tyranny of the majority, and against those who would treat rights as fungible rather than unassailable. In keeping with this view, the framers of India’s Constitution saw the judiciary as the primary guardian of the sort of equality—political and civil, as well as social—that they hoped Independence would usher in. To this end, the Constituent Assembly vested in the Supreme Court and the various high courts the power of judicial review, which allowed the judiciary to strike down laws enacted by Parliament.
History tells us there is no way to create a perfect separation of powers, or a perfect antidote to majoritarianism. In the United States, the twentieth-century legal scholar Alexander Bickel asked how unelected judicial members could exercise almost unimpeded authority in overruling decisions arrived at by a democratically elected government. Checks and balances are meant to come in through a selection process whereby the president nominates judges who are then subject to confirmation by a legislative body. In practice, the government in power often elevates judges closely aligned to the ideology of the ruling party. (How justices rule once on the bench is another question.) Moreover, judges tend to interpret the law in ways that are broadly sympathetic to the worldviews of the legislature and executive; as the American political scientist Robert Dahl wrote in 1957, it is “somewhat unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court Justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”
Similar concerns troubled India’s Constituent Assembly. One member, Shibban Lal Saksena, suggested that judicial appointments be confirmed by a two-thirds majority of both houses of Parliament. Another, B Pocker Sahib, suggested that a judge of the Supreme Court ought to be appointed only after securing the concurrence of the chief justice of India. Both of these suggestions were rejected. Involving the legislature in the appointment process, the assembly thought, would be cumbersome, and would undermine the dignity of the judiciary; to accord the chief justice veto power over appointments was thought to be plainly anti-democratic. Instead, in BR Ambedkar’s words, the Constitution was designed to tread a “middle course.”
This middle course is reflected in Articles 124 and 217, which state that judges of the Supreme Court and the high courts shall be appointed by the president, after consultation with certain authorities, including the chief justice of India (and the chief justice of a high court, when appointing a judge to that court).
At first blush, these provisions may appear unambiguous. But, as the legal scholar HM Seervai observed, they fail to define the nature of the necessary consultations, or transparent criteria to be used in making nominations. As a result, there is little possibility of achieving the sort of public accountability that explicit constitutional standards would provide. Because of their elisions, Articles 124 and 217 have become two of the most important sites in the government’s contest with the judiciary over control of the Constitution.
CHANDRACHUD DOES AN ADMIRABLE JOB of recounting the history of this custodial battle. Between 1950 and 1959, the Supreme Court operated largely as a technocratic institution—it read the Constitution in a direct manner, seemingly unaffected by the moral ramifications of its interpretations. During this period, every judge on the court was appointed on the express recommendation of the chief justice of India. But the constitutional philosophy of these judges did not always sit well with the country’s first prime minister, Jawaharlal Nehru, and his ruling Congress party.
The government’s response almost every time a decision of the court conflicted with its avowed goals was to amend the Constitution. Parliament believed its amending powers to be plenary, and therefore thought it could restrict the court’s powers of judicial review. Initially, the Supreme Court agreed. But, by 1967, a few years after Nehru’s death, the court’s opinion had changed. With a weakened central government, the court took its most significant step towards claiming control over the Constitution. In Golak Nath v. State of Punjab, the court held that Parliament could not amend the Constitution in a manner that infracted a person’s fundamental rights—a determination which would be made by the court.
Several conflicts soon arose between the executive and the judiciary. In 1971, following a split in the Congress, Indira Gandhi’s faction emerged with a sizeable majority in Parliament on the back of her famous “garibi hatao” campaign. Among other things, Gandhi promised to remove judicial barriers to social change.To that end, immediately upon assuming power, the government introduced several constitutional amendments, each aimed at restoring Parliament’s supremacy over the Constitution. But the court once again thwarted the government’s plans. In a landmark decision in Kesavananda Bharati v. State of Kerala, an unprecedented 13-judge bench overruled the court’s decision in Golak Nath. But, significantly, it held, through a seven-to-six majority, that Parliament did not have the power to alter the basic features of the Constitution.
The government soon struck back. On 25 April 1973, a day after the Kesavananda decision was proclaimed, the union government announced that the next chief justice of India would be AN Ray, then the fourth most senior judge on the court. Until then, constitutional convention had been to appoint the most senior judge of the Supreme Court as chief justice. Each of those whom Ray superseded, Chandrachud emphasises, had held against the government in key cases, including Kesavananda. The influential minister Mohan Kumaramangalam claimed that the government had a duty to consider the philosophy and outlook of a judge in deciding whether he or she ought to lead the Supreme Court. This is reasonable so far as it goes—but the convention of elevation by seniority was in place because it ensured judicial independence; a politically motivated departure from the convention would encourage judges hoping to become chief justice to align their views with those of the government.
Any doubts over the government’s intent were soon dispelled by the Emergency, which Gandhi declared in 1975. In pursuance of a new law of preventive detention, the Maintenance of Internal Security Act, some 673 people—most of them political opponents of the government—were arbitrarily arrested. Some of the detention orders were challenged, and several high courts ruled in favour of the detainees. The government’s response was two-fold: it transferred judges who opposed the orders to other high courts without their consent, and it appealed the high courts’ decisions to the Supreme Court.
In what is now almost universally viewed as a pusillanimous decision, the Supreme Court held, through a four-to-one majority in the Habeas Corpus case, that it was powerless in the wake of the Emergency to question executive actions of preventive detention. (Chandrachud’s grandfather, YV Chandrachud, was one of the judges who ruled in favour of the government.) Justice HR Khanna, who wrote a historic dissenting opinion, would pay for his bravery. When Ray retired as chief justice, the Gandhi-led government appointed MH Beg as his successor, even though Khanna was next in the line of seniority.
KHANNA WASN’T THE ONLY JUDGE to face the wrath of the government. The executive sought to transfer as many as 16 judges from various high courts, each of whom had ruled against the government during the Emergency. One of those judges, Justice SH Sheth, challenged his transfer in the Gujarat High Court. In Chandrachud’s words, Sheth’s case, which was ultimately decided by the Supreme Court, represents the “first tussle between the executive and the judiciary for the power to control the Court’s composition.”
The Supreme Court ruled that the executive, in ordering a transfer, was not bound by the chief justice’s opinion; the government was only required to consult him. But it also found that the process of consultation, in the words of Justice VR Krishna Iyer, had to be “real, substantial and effective,” and “based on full and proper materials placed before the Chief Justice by the Government.” Further, if the government chose to ignore the opinion of the chief justice, the decision would run a high risk of invalidation; courts would have the power to review such transfers, which would be presumed to have been influenced by extraneous considerations.
These safeguards ought to have applied to the process of appointments, too. After all, the court’s reasoning in the Sheth case echoed the intentions of the Constitution’s framers insofar as it struck a balance between the executive and the judiciary. But in 1981, the court, in SP Gupta v. Union of India (which became known as the “First Judges” case), overlooked its earlier decision, and decided that the recommendation of the chief justice was in no way binding on the executive. In other words, consultation did not amount to concurrence. Consequently, the safeguards put in place by Sheth’s case, including the judicial review of transfers and appointments, were swept aside. According to the legal scholar Seervai, the judiciary was now placed “at the mercy of the Govt. of India.”
Over the course of the next decade, and especially during the premiership of Rajiv Gandhi, appointments to high courts were often made without the concurrence of the chief justice of India. Then, in 1993, against the backdrop of a proposal to introduce a National Judicial Commission to appoint judges, the Supreme Court reconsidered its decision in the First Judges case. As Chandrachud notes, the judiciary at this time also faced a serious crisis of credibility. One of its judges, Justice V Ramaswami, had just survived an impeachment motion in Parliament, in spite of an inquiry committee finding him guilty of 11 charges of corruption; the Congress party had issued a whip to its members in Parliament directing them to abstain from the vote against the impugned justice.
Instead of reinstating the sane balance advocated by Krishna Iyer in the Sheth case, the majority in Supreme Court Advocates on Record Association v. Union of India (popularly known as the “Second Judges” case) flipped the tables completely, and established a new procedure for judicial appointments. The court ruled that primacy ought to be given to the view of the chief justice of India, who is “best equipped to know and assess the worth” of candidates. In turn, the chief justice was to formulate his opinion by consulting his two most senior colleagues, and the most senior judge on the Supreme Court whose view was “likely to be significant in adjudging the suitability of the candidate”—thereby creating the collegium system. (The procedure was later expanded to include a fifth member.) In effect, consultation now meant not just concurrence but conformity with the judiciary’s will.
This decision was entirely opposed to the Constitution’s text, and its framers’ intent. Some members of the Constituent Assembly, such as B Pocker Sahib, had attempted to amend its draft articles with a view to making judicial concurrence compulsory. But these recommendations were rejected, with little debate. “To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day,” Ambedkar said. “I therefore think that that is also a dangerous proposition.”
THE DECISION IN THE SECOND JUDGES CASE—which was affirmed in 1998—has since been widely denounced by critics. As Krishna Iyer later noted, under the collegium system, “There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.” That this system has failed India was most apparent when, in 2009, the collegium nominated for elevation to the Supreme Court PD Dinakaran, who was then besieged by a string of corruption allegations. (He saved the court from protracted embarrassment by resigning from his post as chief justice of the Sikkim High Court.)
In addition to being extraconstitutional, Chandrachud’s research reveals that the collegium has also proliferated a set of informal criteria that determine which judges make it to the Supreme Court. Since the system came into force, no person below the age of 55 has been appointed as a justice. According to Chandrachud, it has now become an “informal norm that judges will be considered eligible for appointment to the Supreme Court only after they turn 55.” In fact, since 2009, a substantial number of appointees have been above the age of 60. This is significant because judges of the court are constitutionally required to retire at 65. The professed purpose for the collegium’s informal rule is a belief that judges ought to be “mature” enough to hold high office; but a shorter tenure, Chandrachud notes, is likely to impose “an inherent limit on judicial activism. It may take a year or so for a Supreme Court judge to settle in, and several more years to rise to a position of seniority in order to become the presiding judge in a bench on the Court.”
In addition, in order to be considered for elevation to the Supreme Court, a person must almost always be the chief justice of a high court. The collegium deviates from this principle very rarely, and often only in the interest of securing a certain kind of diversity. Chandrachud’s research suggests that geographical variety is favoured over other factors, including caste, gender and religion. No more than two or three judges from the same high court serve together on the Supreme Court at any given time. Questions of an individual candidate’s overall suitability, or of the character and intelligence of eligible jurists who don’t meet the collegium’s informal criteria, seem to be ignored. What this system has meant, Chandrachud writes, is that the court is “diverse only in one sense—the politically correct sense.”
The collegium system might well be a product of its times. As Chandrachud highlights, the judgments in 1993 and 1998 that helped the judiciary arrogate the power of appointment came not under the authoritarian Indira Gandhi government, but at a time when the solidity of the central government was undermined by tenuous coalitions. Somewhat paradoxically, however, when it comes to protecting the rights of political and cultural minorities against the state, the Supreme Court’s record in a number of high-profile cases over the last two decades has been disappointing. Perhaps the collegium’s informal criteria for appointments, combined with a lack of public scrutiny, has degraded rather than bolstered the court’s independence.
Today, we once again have a party that enjoys a majority in the Lok Sabha, is not pressured by the demands of coalition politics, and is keen—as the Gopal Subramaniam episode showed—to make its imprint on the judiciary. There is little evidence to suggest that, in the face of such a government, the court will act as a counter-majoritarian institution. The new regime is presently in the process of reworking a bill on constitutional amendments, which will establish a National Judicial Commission and a new process of appointing judges. To what extent this will impinge upon judicial independence remains to be seen. That said, if the judiciary continues to appoint judges using the collegium system it has carved out for itself, there might be little reason for the government to question the process: after all, there is little to guarantee that judges appointed by the collegium will be equipped to serve as guardians of the Constitution.