In India, the judiciary is hermetically sealed off from democratic
checks and balances.
In
countries like India and the United States, activists frequently complain about
judicial activism: judges are said to be guided by political considerations in
interpreting the law. Certainly, judicial activism is more plausibly a danger
in countries that follow common law systems derived from England, where
judicial precedents are given more weight than in civil law systems where
legislatures codify laws, which then take precedence over judicial
interpretations.
Does
India have one of the democratic world’s most unaccountable judicial branches?
The issue of judicial accountability has been the matter of great debate in
India over the past two decades. No country in the world has reached the
extreme of judicial power that India has.
As in
most other democratic countries, judges in India were initially appointed by the government,
after consulting with the Chief Justice of the Indian Supreme Court. However,
many politically-biased judges were appointed, leading to the establishment of
an extra-constitutional “collegium system” in which only judges could appoint
other judges, placing India’s judicial branch outside of the checks and
balances of the legislative and executive powers in the country. The collegium
itself is made up of three to five senior
judges who can consult with the government, which can only exercise its power
by sending a proposed appointee back for reconsideration. However, “if the
collegium reiterated its choice unanimously the government would have to
appoint that judge.”
This
practice was rationalized in a strange manner, one which was not laid out in
the Indian Constitution. In 1993, the Supreme Court held that since the
independence of the judiciary was part of the basic structure of the
Constitution, it could not be compromised through executive or legislative
interference in the appointment process. Therefore, only the judiciary itself
could appoint judges. The basic structure doctrine has been used by the Supreme
Court to prevent numerous constitutional amendments, despite there being no
stipulation for this concept in either the original Indian Constitution or in
the works and thought of its founders. In a 1951 Supreme Court case, the court held that no part of the constitution was
unamendable.
While
there is no doubt that corruption and nepotism are problems in India to be
guarded against, especially by the branch of government whose job it is to
upload the law, it would be exceedingly strange for a branch of government to
be completely unaccountable by appointing its own successors without public
input. Therefore, all major Indian parties agreed unanimously to curtail the
collegium system last year with the passage of the ninety-ninth Constitutional
Amendment Act, 2014 in the Indian parliament, which was subsequently ratified
by state legislatures. The amendment created the National Judicial
Accountability Commission (NJAC) which stipulated that “the chief justice of
India, two senior-most judges, the union law minister and two ‘eminent persons’
[would be] trusted with the authority to finalise appointments.”
However,
the Supreme Court invalidated the NJAC in a ruling in a 1,030
page ruling in October, and the collegium system endures. However, as
consolation, in December the Supreme Court came out with a list of guidelines
to improve the collegium system, and asked the central
government to finalize a “memorandum of procedure (MOP) in consultation with
the chief justice of India.” While many of the proposals by the government and
judiciary aim at improving communication between the two and increasing
oversight, the main problem of there being a lack of judicial transparency and
accountability remains. As long as judges appoint new judges, the system perpetuates
itself, making it increasingly more difficult for Indian governments to prevent
judges–many already issue directives that are usually the prerogative of the
cabinet or parliament–from obtaining a role in governance that far exceeds the
role normally played by a judicial branch in most countries. By Akhilesh Pillalamarri
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