It is out in the open, as never before. It is no longer sparring practice between two friends before a serious fight. This is a slugfest that has brought into the ring virtually all who matter: the stake-holders and other vested interests. On the one hand, the Government is represented by the Vice-President, the Law Minister, law officers who are Government appointees; on the other hand is the Judiciary headed by the Chief Justice of India, the Collegium, several judges and other legal luminaires. On both sides of the debate are Constitutional experts (and interpreters), organisations and platforms, social scientists and activists, academics and other intellectuals. 

The points of debate are seemingly contentious; they include the basic structure of the three Constitutional authorities: the judiciary, the legislature and the executive; the roles and responsibilities of each of these authorities; with whom and where does the ‘buck’ stop? Does the Government have the right to ‘interfere’ with the judiciary? Reams are being written, volumes are being spoken; editorials and op-eds, commentaries and analysis: the whole range of them. Certainly, a power game; but it is also about the Constitution of India, democracy and the future of India. 

The slugfest is not only contentious but is becoming more and more acrimonious. On 19 January 2023, the Supreme Court did something unprecedented: it uploaded on its website (cfr Collegium Resolutions) its statements on the elevation of certain judges. The resolutions reveal the objections of the Centre and of certain intelligence agencies to elevation of certain persons and the Supreme Court’s reasons as to why the objections of the former were not acceptable. The statements were signed by Chief Justice D.Y. Chandrachud and Justices S.K. Kaul and K.M. Joseph. 

The judges who comprise the collegium decided to bring their decisions into the public domain only after a series of meetings and serious deliberations. The most sensitive dimension of this ‘going public’ is the decision of the Collegium to re-recommend the elevation of lawyers Saurabh Kirpal, Somasekhar Sundaresan and R John Sathyan. The recommendation to elevate the three lawyers to the Delhi, Bombay and Madras High Courts was rejected by the Government in November 2022.

The Government’s objection to Somasekhar Sundaresan was that he aired his views on social media about pending cases; to this, the Collegium bluntly replied that expression of views by a candidate is not a disqualification. There is a similar objection to the candidature of R John Sathyan who shared an article on social media which was critical of the Prime Minister. He was apparently also critical of the Citizenship Amendment Act. The Collegium’s rebuttal, is that sharing an article does not impinge on the suitability, character or integrity of a candidate. An unsaid fact is that Sathyan comes from a Christian background and the government has been hostile to and discriminating against the minorities of the country.

What is certainly doing the rounds in the corridors of power is the Government’s objection to the elevation of Saurabh Kirpal because of his sexual orientation and the foreign nationality of his partner. The Collegium’s response is extra-ordinary: the eight-paragraph, 600-word resolution is significantly longer than the two or three paragraphs such resolutions usually feature, and emphasises that “every individual is entitled to maintain their own dignity and individuality, based on sexual orientation”. The strongly worded resolution states: “The letter of the law minister dated 01 April 2021 states that though ‘homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India’. Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay rights would not rule out the possibility of bias and prejudice.” (To which the Collegium says) “...Decisions of the constitution bench of this court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Mr Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation…. In view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground. Shri Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the bench of Delhi High Court and provide inclusion and diversity.  His conduct and behaviour have been above board.”

This latest imbroglio is just an example, perhaps the tip of the iceberg of the current slugfest between the government and the judiciary where the former is pushing for a bigger and more decisive role particularly in judicial appointments. In the recent past, the government has repeatedly objected to names chosen for elevation by the Supreme Court; last November, it returned the names of nineteen candidates -- a list that included the three lawyers from Delhi, Bombay and Madras High Courts mentioned above. It is common knowledge that the Government wants pliable and spineless ‘yes’ men and women, mainly from the majority community, to be judges in the lower courts, high courts and even in the Supreme Court. There are several examples to prove this! It has been a sheer disgrace that some of the judgements given in different courts are bereft of justice and even logic, meant solely to benefit the ruling regime or some vested interest. One doesn’t need too much intelligence to realise how those who have delivered such judgements are rewarded immensely post-retirement with plum postings and endless perks.

What then is the basic structure of the Constitution? Article 50 of the Constitution clearly stipulates separation of the judiciary from the executive. The President who is the executive head is expected to consult the Chief Justice of India in the matter of appointment of High Court and Supreme Court judges. The concept of the independence of the judiciary is a basic feature of the Constitution, a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle, which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state with the units of law and thereby making the rule of law meaningful and objective (S. P. Gupta v. Union of India 1981 Supp SCC 87). Parliamentary democracy, fundamental rights, judicial review, secularism, etc. are held by courts as basic structure, though the list is not exhaustive. It is the Judiciary that is responsible to decide what constitutes the basic structure.

The following aspects are to be kept in mind where the Judiciary in India is concerned: 

•    The judiciary is autonomous in India. It means that it is not under the jurisdiction of the executive or the legislature. The Supreme Court and the High Courts have the authority to interpret the country's Constitution.
•    Any law of the legislature or acts of the executive, whether at the level of the Union or the level of the State, may be found unconstitutional if they conclude that such a law or action is contrary to the Constitution.
•    Thus, when it is challenged before them, they can decide the constitutional validity of any legislation or activity of the executive in the country. 
•    The Supreme Court of India has also ruled that Parliament cannot change the central or fundamental principles of the Constitution.
•    The powers and competence of the Indian judiciary are such that they can serve as guardians of fundamental rights. In the event of any violation of their rights, people have the right to contact the courts to obtain redress. 
•    To avoid the abuse of the power of the government to make decisions, the courts interfere. On the part of public officials, they verify malpractices.
•    The method of appointing and dismissing the Supreme Court and High Courts judges makes the Indian judiciary very effective.

In 1971, Indira Gandhi introduced the 24th Constitutional Amendment, where she proposed that every provision in the Constitution can be amended or deleted through an amendment. However, in 1973, the Supreme Court put a caveat that the basic structure of the Constitution cannot be effaced. They include provisions like federalism, democracy, republican form of government, secularism, separation of power and independence of the judiciary. Mrs.  Gandhi was stung by this caveat and tried to amend the Constitution again, in 1976, by including two clauses in Article 368, reiterating Parliament's supremacy in amending the Constitution and obliterating the judicial review powers of the Supreme Court. However, in the iconic Minerva Mills judgement (1980), Parliament was denied the will to be omnipotent and judicial independence asserted through judicial review. The process of consultation with the Chief Justice of India has been going on since 1951 wherein the opinion of the CJI is accorded the highest importance.

In India one has to strictly adhere to the doctrine of separation of powers which is an essential part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution.  Besides Article 50, there are other Articles in the Constitution which subscribe to this doctrine. The judiciary also has the power of judicial review over the actions of the executive and the legislature. 

•    The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
•    It can also declare unconstitutional executive actions as void.
•    The legislature also reviews the functioning of the executive.
•    Although the judiciary is independent, the judges are appointed by the executive.

Checks and balances are meant to ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle.

In the Kesavananda Bharati landmark judgement (24 April 1973) by a thin majority of 7:6 wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament in order to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment did not change the Constitution’s basic structure. The Vice-President of India and Rajya Sabha chairperson Jagdeep Dhankhar recently openly questioned the historic 1973 judgment on the Kesavananda Bharati case and the resulting basic structure doctrine on the Constitution stating, "today this one-upmanship and public posturing from judicial platforms are not good. These institutions must know how to conduct themselves." 

The collegium system for the appointment of judges is not ideal. It does have several flaws and is often opaque. What is needed is a greater transparency, impartiality and objectivity. In 2015, the Government brought in an amendment to Article 124 in which they suggested that a National Judicial Appointments Commission (NJAC) should be the basis for the judicial appointments by the President. This Commission included the CJI as chairperson, two senior judges, the Law Minister and two eminent persons. The Apex Court struck it down as it would interfere with the independence of the judiciary. It also invoked the basic structure principle as per which judicial appointments should be independent of the executive. 

In a dissenting opinion, Justice Chelameswar observed that transparency is a vital factor in constitutional governance. Drawing reference to the SP Gupta case he observed that the assumption of the primacy of the judiciary in the appointment of judges is empirically flawed. To hold that the government should be excluded from the process of appointing judges is a doctrinal heresy. For him, the majority viewpoint offends the principle of separation of power, which is a basic feature of the constitution

The People’s Union for Civil Liberties (PUCL), on 17 January, issued an excellent statement on the current slugfest. It said: “If the Executive succeeds in its aims, then even the sporadic reassertion of constitutional values by the judiciary will become a thing of the past. We will have before us an authoritarian regime which will be totally unchecked by any constitutional restraints. Such a situation cannot but be viewed with deep foreboding by anyone who cares about the future of India’s constitutional democracy. It is important for citizens to understand that, at its very heart, the issue of appointment of judges is not a private affair between judges and the Executive but an issue with grave consequences to the common citizen in terms of preserving and protecting the Indian Constitution, promoting its ethos and values and ensuring the survival of constitutional democracy.  It is under these circumstances that the PUCL is issuing this public call to “We, the People of India” with the reminder that what is at stake is the autonomy and independence of the judiciary. “We the People”, especially constitutionally minded citizens and civil society groups, need to stand up to collectively raise their voices and demand that the Central Government and its functionaries stop the public attacks on the Collegium and the judiciary, abide by the spirit of the Constitution and respect its values, ethos and proprieties.” 

The slugfest between the government and the judiciary is about the elevation of Kirpal, Sundaresan, Satyan and much, much more: it is about the future of India!

(Fr Cedric Prakash SJ is a human rights & peace activist/writer. Contact cedricprakash@gmail.com )