Indian Judiciary: The Most Undemocratic Institution in India

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.

- Advertisement - - Article resumes -

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.

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.

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.

Share and Support:
Support OpIndia by paying for content

Most read articles recently

Here is why BJP lost elections, and of course, it was deliberate

What BJP supporters need to realise is this - no political party ever wants to lose and least of all, a party led by the two most politically aggressive politicians the country has ever seen.

India cannot turn into Islamic Nation, only Modi can understand gravity and do needful: Meghalaya HC

There should be uniform law for all Indian citizens, and anybody opposing the Indian laws and constitution cannot be considered as citizens of the country, Meghalaya High Court noted

BJP’s real woes: Lessons from the electoral semi-finals

The prolonged silence of Prime Minister Narendra Modi and BJP President Amit Shah on election results was very telling. The results were clearly unexpected and possibly led to prolonged internal discussions on the future course of action.

‘Will not develop areas which did not vote for me’: Rajasthan Congress MLA shortly after winning

Rajender Singh Bidhuri fought and won a close battle against BJP MLA Suresh Dhakad with a margin of 1661 votes.

Ranchi: Court summons Rahul Gandhi for his defamatory remarks against Amit Shah

The petitioner submitted that the statement by Rahul Gandhi against Amit Shah had hurt his sentiments and tarnished the image of the party.
It is time for Congress and Gandhi Family mukt Bharat

Why Congress-mukt Bharat is still very much in progress

It is time BJP supporters understand the meaning of the term 'Congress-mukt Bharat'.

Can the BJP satisfy its online supporters? If only it were Congress

BJP supporters online, also known as the ‘right wing’, are first to attack the party and write it off after electoral setbacks.

BJP may be weaker than it was in 2014, but Congress is not as strong as projected either

If Congress has not forgotten the 1996 elections, they would very well know they are on a sticky wicket here.

Mayawati extends support to Congress for Madhya Pradesh, may consider Rajasthan ‘to keep BJP out of power’

She said to defeat BJP in Rajasthan, too, BSP will extend support to Congress.

Has PM Modi sounded the start of slog overs with the new RBI Governor’s appointment

Shaktikanta Das, who is currently a member of The Finance Commission and Former Finance Secretary (the one who presided over Demonetisation), has been appointed as the new RBI Governor by the Modi government

Latest articles

Connect with us


Don't miss these