Criticism of judiciary needs more nuance

In a speech delivered last week, Union law minister Kiren Rijiju singled out the judiciary for criticism. His speech focused on two points: The collegium system for appointing judges was opaque and in need of reform, and the judiciary crossed the lakshman rekha too frequently and attempted to take over administrative and executive functions. Neither point is new: The collegium system has been criticised since its inception 30 years ago, and so-called judicial activism has faced disapproval since the first public interest judgments 40 years ago. However, when these criticisms come from a sitting law minister in such direct terms, they deserve closer scrutiny.

Let us begin with the collegium system, a method of judicial appointments whereby the seniormost judges of the Supreme Court (SC) nominate candidates for elevation to the higher judiciary, with the President — as the nodal appointing authority — bound by those recommendations in theory. It is correct to point out that the collegium system is opaque: Candidates are not interviewed, and the collegium’s deliberations are not public (unlike in countries such as South Africa and Kenya, where interviews take place and are public), and an attempt a few years ago to make the collegium’s minutes transparent was swiftly nixed. Apart from informal rumours and discussions, we do not know the bases upon which the collegium appoints judges.

Rijiju’s criticism, however, misses two important points. The first is that this opacity benefits the executive as well. There are numerous ways in which the executive can exercise influence on the appointment process, short of a formal veto. It can, and often does, sit on the file. At the current moment, for example, there are two pending recommendations — one, of an elevation of a judge to the SC and the other of a transfer of a judge from one high court to another — which the executive is stymying by simply not clearing the file. Unfavourable Intelligence Bureau reports are another. Indeed, the collegium process’s opacity is what potentially enables informal bargaining between the parties to ensure that broadly acceptable candidates are nominated.

Second, the collegium system evolved in a specific historical context: Executive dominance over the appointments process and the abuse thereof. The 2015 constitutional amendment — which Rijiju referred to — that sought to introduce a National Judicial Appointments Commission (NJAC), and was struck down by the SC, would have effectively restored executive dominance. But the answer to judicial dominance is not executive dominance, a path we have gone down. It is, rather, a balanced process that considers all stakeholders’ interests. At present, there is no such proposal on the table.

What of Rijiju’s second point on judicial activism? Again, there is a kernel of truth here: In the past, the courts have often entangled themselves in the minutiae of administration, a task that they have been unsuited to perform (although the courts would argue that this is something they have been forced into, due to executive lethargy). However, in this context, the example that the law minister provided was telling: He referred to the SC ruling that put the offence of sedition in abeyance last year, despite the government telling the court that it planned to “review” the law.

This, however, misses the wood for the trees. In our constitutional system, it is the central obligation of the courts to review and test laws for compliance with the Constitution and with the fundamental rights chapter. There is no dispute about this. Thus, if the law of sedition is challenged because it violates the Constitution, the Court must hear and decide the case either way. Anything less would be abdication. The fact that the government intends to “review” the law is neither here nor there. Indeed, in no jurisdiction worth the name is it common practice for courts to suspend hearing constitutional challenges based on a government statement that the law might change in the future.

In this context, it is important to remember that despite the law minister’s criticism, when it comes to civil rights matters, especially where the government invokes national security, our courts are anything but activist. As numerous cases, from the internet shutdowns in Kashmir to challenges to national security laws, show, our courts have been very deferential to the State’s arguments across a range of issues. Indeed, the problem here is not that the courts are too activist, but that often, they are not activist enough.

In sum, therefore, while the law minister’s speech raises two issues of importance, both the collegium system and judicial activism require more nuanced deliberation than what is being offered at present.

Gautam Bhatia is a Delhi-based advocateThe views expressed are personal