<p>This week marks 45 years since the Indira Gandhi government imposed the 18-month-long Emergency in India and is as good a time as any to recall her infamous battles with the judiciary over the appointment of judges. Conventional histories will pinpoint to April 24, 1973 as the day it all began — when three senior judges of the Supreme Court were superseded by the government to appoint its chosen judge, Justice AN Ray, as the Chief Justice of India. However, tensions began much earlier. American scholar George H Gadbois, based on his interviews with every single living judge (and the families of the deceased ones), concludes that disagreement over who gets to have the final say in the appointment of judges goes back to 1971, during the term of CJI Hidayatullah.</p>.<p>The source of this disagreement has some basis in the text of the Constitution. Article 123 says that the President of India shall appoint judges of the Supreme Court after “consultation” with the CJI. However, Article 74 also states that the President is supposed to carry out her functions on the “aid and advise” of the Council of Ministers. This raises the obvious question — in appointing judges, if the CJI says one thing and the Council of Ministers says another, whom should the President listen to?</p>.<p>This was one of those issues that was discussed fairly threadbare in the Constituent Assembly and I’ll point to my colleague Arghya Sengupta’s two books on the matter for a deeper study. Suffice it to say though that BR Ambedkar, in the debate over the appointment provisions, was not in favour of giving the CJI a ‘veto’ over matters of judicial appointment. This seems to suggest that in the event of a conflict between the judiciary and government over appointments, the government will have final say. That, however, has to be balanced with Ambedkar’s statements in the CA emphasizing the need and importance of an independent judiciary.</p>.<p>The potential conflict between the judiciary and the executive did not take place during the premiership of Jawaharlal Nehru or Lal Bahadur Shastri, who were content to let the CJI have the final say in appointments. Not that they did not have disagreements with judges — the Constitution itself was amended to address some problematic judgements — but at no point did they seek to replace judges not in consonance with the government.</p>.<p>That changed during Indira Gandhi’s second term, with the idea of a “committed judiciary” (i.e. committed to the government’s ideology) taking hold. Tussles over judicial appointments would continue for the next few decades, beyond Indira’s tenure, until the Supreme Court in 1993 pulled a metaphorical rabbit out of the hat by holding that the President was bound to appoint judges only on the advice of the Chief Justice of India but that such advice had to be given by the CJI in consultation with three fellow senior judges or “the collegium”. The collegium was expanded to five judges in 1999 and has continued as such, except for the time Parliament tried to introduce the National Judicial Appointments Commission to do the collegium’s job — only to have it quashed as being against the basic structure of the Constitution.</p>.<p>The present system of appointments – in which judges effectively appoint other judges — has no basis in our Constitution’s text or was the intention of the CA. Rather, it is defended on the basis that it is closer to Ambedkar’s intent in ensuring an independent judiciary, and therefore acceptable. No one can dispute that the collegium system of appointments has its problems — even the Supreme Court has acknowledged it. It has not ensured independence (as recent interference by the Union government shows) or ensured quick filling of vacancies (as the gaps in High Courts show). It stands accused of being opaque and subjective, and rife with favouritism and nepotism. The collegium system feels like the worst of all worlds on this front. Can we fix this by going back to the original intent and text of the Constitution on judicial appointments? Probably not. We can no more undo the history of judiciary-executive conflict than we can turn crisp dosas back into batter.</p>.<p>The only path forward is to move ahead, learning from the tortured history of conflict over judicial appointments, and come up with a better system. Something like the system and process followed in the UK might get us closer to the ideal. Until then, the issue of judicial appointments serves to remind us of what Ambedkar said in his closing speech to the Constituent Assembly: “...however good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”</p>
<p>This week marks 45 years since the Indira Gandhi government imposed the 18-month-long Emergency in India and is as good a time as any to recall her infamous battles with the judiciary over the appointment of judges. Conventional histories will pinpoint to April 24, 1973 as the day it all began — when three senior judges of the Supreme Court were superseded by the government to appoint its chosen judge, Justice AN Ray, as the Chief Justice of India. However, tensions began much earlier. American scholar George H Gadbois, based on his interviews with every single living judge (and the families of the deceased ones), concludes that disagreement over who gets to have the final say in the appointment of judges goes back to 1971, during the term of CJI Hidayatullah.</p>.<p>The source of this disagreement has some basis in the text of the Constitution. Article 123 says that the President of India shall appoint judges of the Supreme Court after “consultation” with the CJI. However, Article 74 also states that the President is supposed to carry out her functions on the “aid and advise” of the Council of Ministers. This raises the obvious question — in appointing judges, if the CJI says one thing and the Council of Ministers says another, whom should the President listen to?</p>.<p>This was one of those issues that was discussed fairly threadbare in the Constituent Assembly and I’ll point to my colleague Arghya Sengupta’s two books on the matter for a deeper study. Suffice it to say though that BR Ambedkar, in the debate over the appointment provisions, was not in favour of giving the CJI a ‘veto’ over matters of judicial appointment. This seems to suggest that in the event of a conflict between the judiciary and government over appointments, the government will have final say. That, however, has to be balanced with Ambedkar’s statements in the CA emphasizing the need and importance of an independent judiciary.</p>.<p>The potential conflict between the judiciary and the executive did not take place during the premiership of Jawaharlal Nehru or Lal Bahadur Shastri, who were content to let the CJI have the final say in appointments. Not that they did not have disagreements with judges — the Constitution itself was amended to address some problematic judgements — but at no point did they seek to replace judges not in consonance with the government.</p>.<p>That changed during Indira Gandhi’s second term, with the idea of a “committed judiciary” (i.e. committed to the government’s ideology) taking hold. Tussles over judicial appointments would continue for the next few decades, beyond Indira’s tenure, until the Supreme Court in 1993 pulled a metaphorical rabbit out of the hat by holding that the President was bound to appoint judges only on the advice of the Chief Justice of India but that such advice had to be given by the CJI in consultation with three fellow senior judges or “the collegium”. The collegium was expanded to five judges in 1999 and has continued as such, except for the time Parliament tried to introduce the National Judicial Appointments Commission to do the collegium’s job — only to have it quashed as being against the basic structure of the Constitution.</p>.<p>The present system of appointments – in which judges effectively appoint other judges — has no basis in our Constitution’s text or was the intention of the CA. Rather, it is defended on the basis that it is closer to Ambedkar’s intent in ensuring an independent judiciary, and therefore acceptable. No one can dispute that the collegium system of appointments has its problems — even the Supreme Court has acknowledged it. It has not ensured independence (as recent interference by the Union government shows) or ensured quick filling of vacancies (as the gaps in High Courts show). It stands accused of being opaque and subjective, and rife with favouritism and nepotism. The collegium system feels like the worst of all worlds on this front. Can we fix this by going back to the original intent and text of the Constitution on judicial appointments? Probably not. We can no more undo the history of judiciary-executive conflict than we can turn crisp dosas back into batter.</p>.<p>The only path forward is to move ahead, learning from the tortured history of conflict over judicial appointments, and come up with a better system. Something like the system and process followed in the UK might get us closer to the ideal. Until then, the issue of judicial appointments serves to remind us of what Ambedkar said in his closing speech to the Constituent Assembly: “...however good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”</p>