'SC has over-reached with Collegium system': Law scholar R Sudarshan

The Supreme Court's latest observation – for an 'introspection' into the collegium system of judicial appointments – has rekindled the debate on the efficacy of the age-old appointing process.

Amid the rising instances of allegations of judicial corruption, should the government be allowed to have a greater say in appointing judges?

Professor Ramaswamy Sudarshan, Dean and Executive Director at the Centre for Ethics, Law and Political Economy, Jindal School of Government and Public Policy, asserts the ethical standard of judges will only worsen if the judiciary has an undue say in the selection of judges.

In an interview with Catch, Sudarshan, a former Rhodes Scholar at Oxford University who has done extensive research on the interface of law and economics, governance and public policy, said the SC should have allowed the National Judicial Appointments Commission (NJAC) to function, rather than striking it down as 'unconstitutional'.

He also pointed to the rising authoritarianism in the behaviour of the three branches of government – the Legislature, the Executive and the Judiciary.

Excerpts from the interview:

On Supreme Court's role in protecting and furthering principles enshrined in the Constitution

The Supreme Court of India has been, since 1950, very creative in its jurisprudence. It has strived to uphold what Dr BR Ambedkar called 'constitutional morality'. It has been misunderstood and criticised by the political class, which castigated its judges as 'upper class' and 'upper caste' people when the court struck down land reform laws, the executive order abolishing privy purses to rulers of the princely states of British India, and the nationalisation of banks.

The point is that the court held that the right to property applies equally to the zamindars of large estates as it does to the owner of a small piece of land; that a constitutional guarantee of privy purses to former rulers could only be revoked by a proper constitutional amendment, etc.

The attempt by the Supreme Court, led by Justice K Subba Rao in 1967, to protect fundamental rights from being whittled down through constitutional amendments was motivated by constitutional morality, not by a love for the right to property.

The decision to shift its special protection from fundamental rights provisions in Part III of the Constitution to a broader idea of the 'basic structure and framework' of the Constitution, in 1973, was motivated by the court fearing that a single party with two-thirds majority could run a bulldozer over the essential features of the Constitution, ie, India must remain a republic (a political dynasty cannot convert it into a monarchy), preserve its federal structure, and uphold judicial review.

But for the judicial protection of the 'basic structure and framework' of the Constitution, the Union government could have continued its past practice taking over power in states by dismissing elected governments on flimsy allegations of breakdown of law and order, and we would have had the Maintenance of Internal Security Act, allowing preventive detention with no reasons given, permanently entrenched.

The creation of Public Interest Litigation or Social Action Litigation, as it should be accurately described according to Prof. Upendra Baxi, is another important innovation in jurisprudence.

No court in the annals of the history of jurisprudence has done more to safeguard and protect the Constitution than has the Supreme Court of India.

On SC's continued refusal to allow government a say in the appointment of judges to higher judiciary

The Supreme Court has played a sterling role as the protector of the Constitution against the risk of arbitrary executive action and majoritarian manipulation of constitutional norms and values. But having done that, it has over-reached itself and arrogated to itself the power to select members of the judiciary in the High Courts and in the Supreme Court.

The sanctity of judicial review does not warrant the emasculation of the Executive's role in selecting judges. The Collegium of the Supreme Court, which draws up the shortlist for appointments now, has selection criteria that are not transparent and clear, just as it was when the Executive used to draw up the initial shortlist to consult with the Chief Justice and senior judges of the Supreme Court.

The Supreme Court's enhanced role in selecting judges can lead to cronyism and damage the independence of the judiciary.

A High Court judge aspiring to be elevated to the Supreme Court is unlikely to criticise and distinguish any judgement written by a current member of the Collegium. The NJAC should have been permitted to function.

On the issue of judicial corruption, including charges of by late Arunachal Pradesh Chief Minister Kalikho Pul against several former and sitting SC judges

We must resist the tendency to glorify the past and believe that in the glorious bygone era, there was no corruption in the judiciary.

Judicial corruption has been around ever since the system of courts evolved in the Common Law of the United Kingdom, and passed on to India as a colonial legacy.

There could be worsening in ethical standards of judges if the judiciary has an undue say in the selection of judges, just as there is a risk of political bias and corruption of that kind if the political Executive selected judges with no checks and balances.

That is why I believe that the NJAC was a good attempt to strike the desirable balance, and do its bit to minimise, though not eliminate, corruption in the judiciary.

On controversies surrounding former Calcutta High Court judge CS Karnan and former Rajasthan HC judge Mahesh Chandra Sharma

The Justice Karnan episode will soon be forgotten and become a footnote in the annals of Indian jurisprudence. The judiciary will always have idiosyncratic personalities whose behaviour can be an aberration. But little lasting damage can be done by such odd individuals.

The judiciary's reputation depends on great constitutional judgements, that have enabled the working of India's democracy over the past 70 years. It is a solid reputation that cannot be tarnished by the odd idiosyncratic judge giving vent to his or her beliefs.

On opposition to Justice Dipak Misra's elevation as CJI on charges of alleged financial impropriety

We have too much 'trial by media' on all kinds of matters. If Justice Misra could serve as a judge of the Supreme Court, he could just as well be the Chief Justice of India. After the supersession of judges who were not liked by Prime Minister Indira Gandhi, India has reverted to the practice of naming the senior-most judge in terms of years of service in the Supreme Court as the Chief Justice. This is as good a criterion as a lottery.

On the petitions before the Supreme Court challenging the legality of Articles 370 and 35A of the Constitution, which accord special status to Jammu and Kashmir

Article 370 is the basis for Jammu and Kashmir to belong to the Union of India. Without it, the Instrument of Accession will be nullified. Constitutional morality, of the kind that Dr Ambedkar pleaded for in the working of the Constitution, requires us to respect the outcome of history, which requires a special status for Jammu and Kashmir in our asymmetrical federal system.

While Ambedkar was opposed to Article 370 on grounds that it was discriminatory, he would have been the first person to accept it once it became a part of the Constitution.

Not all of India's states are part of the Union on the same footing. Ironically, Article 370, in practice, has given the Union government more powers over Jammu and Kashmir than it has any other state in India. Powers of J&K have been altered through mere Presidential orders, with the concurrence of the Governor, who is an appointee of the Executive.

These changes were originally meant to be approved by the State’s Constituent Assembly, which no longer exists. It is a misconception that Article 370 privileges J&K over other states. The opposite is true in practice.

On how far independent India has deviated from the constitutional vision

Any form of authoritarianism is a danger to the fundamental rights of citizens, whether it comes about by having a Parliament without a strong set of Opposition parties, an Executive which accumulates extraordinary powers to rule by ordinance, or a judiciary that develops the mindset that it is above the law.

We have witnessed intimations of authoritarian behaviour in all three branches of government. Our hope lies the capacity of each of them to be able to function as a check on authoritarian tendencies in other institutions of governance at different times, as and when the need arises.

The independence of the Election Commission and the Comptroller and Auditor-General of India are also important.

And we need the institution of the Lokpal, even though none in the political class we have now wants to let that institution function.