Outrage over the appointment of judges to the Supreme Court has become like a broken record that jarringly repeats itself over and over again. This time, there has been considerable criticism of the decision of the Collegium to recommend the appointment of Justice Vipul Pancholi to the Supreme Court. Justice Pancholi is from Gujarat, was fairly junior amongst high court judges, and will go on to serve as the Chief Justice of India for close to two years. One of the members of the Collegium, Justice B.V. Nagarathna, dissented, a matter that was leaked to the press. Though the dissent was not published as Justice Nagarathna requested, it appears that she supposedly pointed to how there were persons more senior to Justice Pancholi who were eligible to be considered.
Similar outrage has been expressed episodically in the past, sometimes when a supposedly suitable candidate has been passed over; at other times when a supposedly less-than-suitable candidate has been appointed. ‘Supposedly’ is an oft-used word when it comes to the Collegium’s decisions since no official record of decisions and their reasons are consistently published.
There have also been two recent instances of an institutional impasse — first, when Justice Rohinton Nariman stood firm about recommending a particular judge whom he and several other notable jurists thought was outstanding, something his colleagues on the Collegium refused to do; again, when Justice J. Chelameswar stopped attending Collegium meetings, saying they were like “informal, coffee table meetings” where there was little institutional propriety.
Looking further back, some may also view these impasses as congenital — very soon after the Collegium came into being, the former chief justice, M.M. Punchhi, refused to recognise its legality leading to a complete stalemate in appointments. Each time, these controversies have been accompanied by well-meaning cries of anguish, well-founded fears of institutional degeneration, and well-intended calls for reform. And every time, they have been ignored and things have gone on as before.
This is because the issue is not about Justice Pancholi, Chief Justice Punchhi or any other individual, either in the Collegium or a candidate to be considered by it. It is not even about the government, which always has the last word on whether a candidate is eventually appointed. It is about a flawed framework. An analogy would be useful.
Ali Mazrui of Makerere University in Uganda and Walter Rodney of Dar-es-Salaam University in Tanzania had a stirring debate in 1970 from which a key distinction arose. Mazrui argued that there was a difference between an ideological point of view and a mode of reasoning. For Rodney, in newly-decolonising Tanzania, the nation and its institutions had been set up to serve the ideology of the political Left: to dismantle the power structures of the colonial State and serve citizens transparently and with integrity. For Mazrui, while this was laudable, Rodney was still speaking from within the Western construct of a nation-state. By being educated within the framework of the West, he could only recast a Western institution — in this case, the government as an organ of State — but he could not fundamentally rethink it.
This distinction is useful to understand why the judicial Collegium in India continues to function in this opaque manner and reform efforts consistently fail. Take the most ambitious step tried so far — the Constitution amendment setting up a National Judicial Appointments Commission to appoint judges instead of the Collegium. It was argued by many, including myself, that it was struck down by the Supreme Court as unconstitutional not because it was legally invalid but because it was seen by a turf-conscious court as a power grab by the government. Scratch the surface of the argument and the conceptual point becomes clear: that insulating the judiciary from the government is not effective in securing independence — creating the right structure of checks and balances is.
On the other side, opponents of the NJAC, led by the redoubtable Fali Nariman, argued that the new institution with considerable representation of the government would infringe upon judicial independence. Their conceptual point, too, is clear: judges alone are best placed to protect their own independence.
Both the supporters of the Collegium and its critics adopt, in Mazrui’s analysis, a similar mode of reasoning — both believe that an independent judiciary is conceptually possible and desirable. Their differences are only in terms of what best secures such independence. This is attributable to the difference in assessment of how far the judges themselves, vis-à-vis the government, would be respectful of judicial independence. This assessment is part political nous, part reading of history, and part
common sense. It does not meaningfully grapple with the structural factors
at play.
The very idea that there ever was or can be a judiciary which is substantively independent of the government is a myth conceptualised most coherently in The Federalist Papers, seized upon and given new life in the colonies by British administrators and judges and parroted by generations of constitutionalists, particularly in the Global South. For James Madison and Alexander Hamilton who wrote The Federalist Papers, it was a useful thought experiment that there could be courts that were optimally independent of other organs of the State. That would be handy for the type of managed gridlock, which they believed would be most conducive to Americans taking the most advantageous political decisions for themselves.
The British, ever-vigilant in putting good ideas to use, ensured that in India (as well as in their other colonies in Africa), natives viewed judges and courts as somehow independent of the Crown despite being entirely beholden to it. A few landmark decisions, appointment of a handful of men of remarkable integrity, and a constant invocation of judicial autonomy led to a deep entrenchment of the view amongst Indians that British judges were fair and independent. It is this view that directly contributed to the constitutional provisions that seek to institutionally secure a similar degree of independence for the Supreme Court of India and the high courts. Once it is understood that such independence is illusory, that it has never had any indigenous roots, and that it was propounded in a particular political context, the stakes of the Collegium debate become clear. Judges and governments, both in colonial and independent India, know that independence is unachievable. This is why the parlour games around the Collegium, having become an end in themselves, can and will continue.
This is not to say that one should not reform the Collegium. The system is broken and calls to reform it are well-intended. But reform provides a plaster on a wound, it cannot heal a broken bone. This does not mean that the wounds should not be patched up — Collegiums should be urged to be transparent, publish decisions, interview candidates, create objective criteria. Governments, too, should decide in time, give reasons, and act responsibly. In short, the system should reach a position when it commands public trust and confidence. And if it can’t, then it may be time to think of another NJAC-like model.
But even with such reforms, the broken bone of the judiciary is not in how courts are set up or what they do. It is who they are. The Supreme Court of India and its high courts are holdovers of a large colonial State that rules from above. What they need is not reform, but reimagining. Collegium controversies are a mere sideshow.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal
