The last few months have witnessed an unfortunate tussle between the Union government and the judiciary over the appointment of judges in the higher judiciary. The government argues that it has a right to be party to the appointment of judges, whereas the Supreme Court underlines that the Constitution demands it to be independent and free from executive pressure.
If one reads the Constituent Assembly debates, one would find that the constitution makers had envisaged an independent judiciary. The discussion over the ‘Union Judiciary’ took place in May 1949, and it was Dr. B.R. Ambedkar who proposed an amendment to change the nomenclature earlier conceptualised as the ‘Federal Judicature’. Subsequently, on May 23, 1949, in the heading of Chapter IV of Part V, the phrase was replaced by ‘Union Judiciary’. Not a simple phrase, it streamlined the powers of the judicial system of a country that was emerging from colonial rule. If a ‘Federal Judicature’ had come into existence, the states might have exercised some control over the higher judiciary as in the case of provincial civil services or police services. But through the ‘Union Judiciary’ there emerged a coherent system of justice and a judiciary designed as an independent institution and in consonance with the highest international standards of jurisprudence.
On the very first day of discussion on the amendment, Professor K.T. Shah emphasised the need for an independent judiciary. He underlined that from “the point of view of civil liberty and the general democratic character of the governance of the country”, “complete separation of the Judiciary from the Executive” needs to be guaranteed. “I think it is of the utmost importance that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence,” he added. Professor Shah was supported by the polymath legislator K.M. Munshi. Munshi professed that the responsibility of an independent judiciary “principally lies with the public opinion in the country” and those who are working for the Constitution.
Pause here. Try to gauge the meaning of ‘public opinion’ and then read the recent statements of Union Law Minister Kiren Rijiju against the judiciary. He suggests that while the judiciary is independent, it cannot ignore ‘public opinion’. The current government is trying to persuade citizens that since the appointment process of judges is faulty, ‘we the government’ have a moral and constitutional right to interfere in the judiciary.
It directly goes against the vision of the Constitution Assembly. H.V. Kamath, another stalwart on the drafting committee, argued that before the assembly proceeded to confer fundamental rights upon citizens, the establishment of an independent judiciary should be of a high priority. In various judgments over the decades, the courts have affirmed that a judiciary free from any kind of subordination is an essential tenet of the Constitution. These judgments have fortified the position of the judiciary.
Some members of the Constituent Assembly were apprehensive about the carving out of an ‘Imperium in Imperio’—a state in the empire. The anxiety was articulated by T.T. Krishnamachari, but on May 27, 1949, Dr. Ambedkar clarified that “we do not want to create an Imperium in Imperio, and at the same time we want to give the Judiciary ample independence so that it can act without fear or favour of the Executive”.
Various politicians have asserted in the last few decades that the judiciary cannot be a self-appointing body. But in an era of perceptions, truth gets clouded by manufactured information. The Constituent Assembly also touched upon the question of the judiciary being a self-appointing body.
Article 124 of the Constitution clearly states, “In the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.” The provision directly flows from the debate on May 24, 1949, when some members sought the direct intervention of Parliament in the matter of appointment of the chief justice. Shibban Lal Saxena, a member of the Constituent Assembly, insisted that the “Chief Justice of the Supreme Court should be appointed by the President, but it should be confirmed by at least two-thirds majority of both the Houses.” Saxena sought to give more powers to the President of India and Parliament over judicial appointments, by proposing that a judge who gets appointed should “enjoy the confidence of both the Houses of Legislature”.
Significantly, the amendment proposed by Saxena was not even moved in the Assembly. There was a consensus among the members that the judiciary must be free from the interference of Parliament. Since consultation with the CJI was made mandatory for ‘the appointment of a Judge’, it organically made way for the collegium system.
But the independent judiciary still does not reflect the social reality of the nation. The collegium’s recommendations of December 13, 2022, uploaded on the Supreme Court website, do not include any woman and members of Scheduled Castes or Scheduled Tribes. The nature of the legal profession in India is itself not diversified. The members of the bar and bench mainly come from upper classes and castes. Unfortunately, the judiciary has not made itself sufficiently inclusive. In their 2013 book, An Uncertain Glory: India and its Contradictions, Jean Drèze and Amartya Sen wrote that in the executive committee of the Allahabad Bar Association, about 90 per cent of its members were upper caste. The Allahabad High Court is the biggest high court in the country in terms of number of judges, with a sanctioned strength of 160. But there is an inadequate representation of marginalized sections of the society. Such skewed representation exposes the judiciary to criticism from several quarters, even from those who do not wish to undermine its independence. The collegium system may be a good practice but it seems to favour some ‘judicial families’. If the collegium system does not include more social groups and the marginalised in higher judiciary, it may attract more criticism and an unpleasant public opinion.
(This appeared in the print edition as "Behind Closed Doors")
(Views expressed are personal)
Rama Shanker Singh is a historian
