No major democracy in the world gives so much power to the judges of their country like we do in India. Our judges appoint themselves, regulate their activities and also wield the power to punish those who question them.
Removal of the judges requires a cumbersome impeachment process that involves an investigation followed by 2/3rd majority of votes in both house. As a result not even a single judge of Supreme Court or High Court has been impeached in India.
The accountability of higher judiciary to the people is the least among three major pillars of Indian state. The Supreme Court has every feature of an oligarchy deeply embedded in it.
India’s Judicial Appointment Process
In India , a collegium consisting of chief justice of India and four senior-most judges of Supreme Court screens, scrutinizes and recommends the candidates for appointment to the Supreme Court. The government cannot suggest any names to the collegium. In case of High Courts, screening of candidates for appointment to high courts is done by a collegium of chief justices of respective high courts and four senior most judges on the HC bench. The Supreme court collegium scrutinizes and recommends candidates for appointment to the respective high Court. The same institutions regulate transfer of judges as well.
In addition to this, the deliberations of this collegium are mostly opaque and not fully disclosed to the public. There is high scope for nepotism and elite self-recruitment to top courts in this collegium system. The reason cited for this system is to ensure independence of judges (which is a farce).
Judicial Appointment Process in major democracies like USA and UK
USA and UK are two leading democracies where judicial appointments are far more transparent than India. In USA, the Senate is directly involved in appointing judges. The Senate Judiciary Committee conducts public hearings of potential candidates before confirmation of the candidates.
United Kingdom, (the parliamentary democratic system closest to that of India) appoints Supreme Court judges according to a law passed by the Parliament (Constitutional Reform Act 2005). The judges are appointed through a five member selection commission of which only two members are judges. The other three are members of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland, and the Judicial Appointments Commission in Northern Ireland, members of which are recruited by a transparent process.
Unfortunately, the Indian system of appointing judges has none of these safeguards or scrutiny from people or elected representatives. The government has to simply nod its head for every suggestion sent by Supreme court collegium or send back the recommendations with some reasons. The Indian system of judicial appointments is highly undemocratic.
The Letter Submitted By Mutinying Judges To The Press
It turns out, that the issue raised by Chelameshwar & Co in their letter had something to do with the procedure to appoint Judges to the High Courts and Supreme Court of India. The letter cites a judgement in the R.P Luthra vs Union of India case which says that the Memorandum of Procedure(MOP) for appointment of judges must not be delayed anymore.
MOP is a backdoor document that seeks to end the conflict between legislature and judiciary on the issue of judicial appointments. The previous attempt through NJAC (National Judicial Appointments Commission) , a transparent mechanism was struck down by Supreme Court. From the bench which struck it down, Justice Chelameswar was the lone dissenter, who backed the NJAC. The letter sent to the CJI says :
On 4 July, 2017, a Bench of seven Judges of this Court decided In Re. Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in R.P.Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the memorandum of procedure.
Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices Conference and by the full court. Such a matter of grave importance if at all required to be taken on the judicial side should be dealt with by none other than a Constitution bench.
The reason for choosing this case and the timing of this letter raises many questions on the real motive of this mutiny by four senior and ‘respected’ judges of the Supreme Court.
Is the Revolt Politically Motivated?
Justice Chelameshwar’s meeting with the CPI leader D Raja lends credence to the suspicion that this exercise might have a larger political motive. D Raja refused to share the details of what transpired him and the Judge when interviewed by a journalist.
— Republic (@republic) January 12, 2018
Most of the opposition leaders have piggy backed on the ‘democracy in danger’ statement in their remarks. One can also expect high drama in the upcoming budget session of Parliament. This tweet posted by the Congress party’s official handle gives an indication of things to come in near future.
For the first time in history, 4 sitting SC judges publicly questioned the functioning of the Supreme Court. Is the Modi Govt interfering with India's judiciary? #DemocracyInDanger pic.twitter.com/T79EeYyMPU
— Congress (@INCIndia) January 12, 2018
What does it achieve?
At the end of the day, one must ask, what did this revolt achieve? The rebel judges “came to the public” regarding an issue, which can be resolved only by the President of India, the Government of India, in consultation with the CJI and other Justices. This media circus has only demeaned the post of the CJI. Worse, the letter of the rebel judges, shies away from naming specific cases, thus leaving the field open for innuendo and even more confusion. All this, in the end tarnishes the Indian judiciary itself.
The judicial appointments issue , though important , will now become a victim of political fight inside the Supreme Court and in Parliament. Biggest casualty in the end is the reputation of the Supreme Court of India.