In Indian Constitution vs Collegium Debate, Can the Govt & Judiciary Reconcile?

While SC system nominating own peers needs review, so does legislature intimidating judiciary for subaltern position

Image: Namita Chauhan/The Quint

(This is Part 2 of our special series on the occasion of India's 74th Republic Day. Read Part 1 here.)

India is currently celebrating the 75^th anniversary of August 1947 under the banner of ‘Azadi Ka Amrit Mahotsav’ (festivities of the nectar of freedom) which began in March 2021 and this commemoration of the intrepid journey of an independent democratic nation will conclude on 15 August, 2023.

Soon after, the country will segue to the next national event— that of the Indian Republic@75 which commenced with the adoption of the Constitution on 26 January 1950. Becoming a republic with a comprehensive and visionary document as the Constitution was both onerous and exhilarating for a young nation with lofty aspirations.

However, the run-up to the 74th Republic Day has been discordant in a visible manner as evidenced in recent weeks, with the interpretation of the Indian constitution and the inviolability of its ‘Basic Structure’ being contested by the leading lights of the legislature. The judiciary has been accused of ‘hijacking’ the constitution by one sliver of legal luminaries and this relates to the in-house collegium system that the Supreme Court has upheld as the norm for elevation to the highest bench.

On Interpretation of the Indian Constitution

The Vice President of India Jagdeep Dhanker who is also the Chairman of the Rajya Sabha and Om Birla—the Speaker of the Lok Sabha have differently voiced their disagreement with the prevailing interpretation of the 24 April 1973 ‘basic doctrine’ verdict of the Supreme Court in the landmark Kesavananda Bharati case aka Fundamental Rights case. It may be recalled that a triumphant Indira Gandhi who had led the nation towards the spectacular 1971 military victory that enabled the birth of Bangladesh, was the prime minister at the time.

The central principle that was being contested then, was the untrammelled primacy that the Congress-party-dominated Parliament wished to accord unto itself by virtue of being the elected representatives of the people.

The 13-judge bench presided at that time by Chief Justice SM Sikri delivered a narrow 7:6 verdict which declared that the ‘basic structure’ of the constitution could not be tampered with by the legislature thereby, denying the power that Parliament wanted to accord unto itself to amend the constitution. 

At the time, the legendary Nani Palkhivala who argued against the government opined that Parliament ‘cannot cease to be a creature of the Constitution and become its master.’

CJI Hails 'Basic Structure'

In a very nuanced but firm manner, the judiciary has pushed back against this overture by the Modi government to assert such primacy. Delivering the Palkhivala memorial lecture on 21 January in Mumbai, the Chief Justice of India DY Chandrachud asserted that “the basic structure of our Constitution like the north star, guides and gives certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted” —and it is amply evident that the current path being traversed by the Modi government, is convoluted and bitterly contested.

The prevailing tension between the government and the higher judiciary will test the resilience of the Indian Constitution— a majestic and inherently empathetic document which had envisioned a vibrant and harmonious institutional relationship based on the principle of checks and balances between the legislature, executive and judiciary.

Granville Austin, a US historian considered to be the foremost expert in relation to the Indian constitution had opined that the basic structure doctrine “is fairly said to have become the bedrock of constitutional interpretation in India.” Elaborating on this issue, Chief Justice Chandrachud noted in Mumbai that “the basic structure or the philosophy of our constitution is premised on the supremacy of the constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.

Can the Pillars of Indian Democracy Stand True to the Constitution?

History reminds us that when democratic governments with strong leaders at the helm, accord unbridled power unto themselves through a supine legislature and browbeaten higher judiciary, the consequences can be very negative. Germany under Hitler in 1933, went down this path and the results were disastrous. Though not similar, the USA and its 6 January 2021 nightmare wherein a sitting President sought to overturn constitutional sanctity is more recent.

In the Indian context, the then PM Indira Gandhi smarting from the 1973 Kesavananda verdict used the brute majority in the parliament to introduce various amendments that allowed the government to intervene in the appointment of the Chief Justice of India by superseding certain ‘inconvenient’ justices. Consequently, Justice AN Ray who was number four in seniority (but had upheld the argument that parliament had unlimited power to amend the Constitution) became the 14^th CJI on 27 April 1973 just a few days after the Kesavananda Bharati verdict. The principle of seniority was cast aside in a peremptory manner and the rectitude of Indian democracy was muddied.

It was in this period—the years preceding the imposition of the Emergency by PM Indira Gandhi that the ‘committed judiciary” theory came into vogue. Then Law Minister Mohan Kumaramangalam rationalised this initiative as one wherein the government was required to consider not ‘just judicial integrity but the philosophy and outlook of judges in its appointments’ to the highest  bench. This practice was redressed when PM Morarji Desai assumed office.

While it is agreed that the existing practice of the Supreme Court collegium nominating its own peers is in need of review and improvement, the legislature intimidating the judiciary to accept a subaltern position in the constitutional edifice would be counterproductive for the credibility of Indian democracy.

The Indian Republic@75 (samvidhan ka mahoutsav?) in January 2025 is two years away. This may be an opportune period to objectively deliberate on the current dissonance between the different pillars of the democratic edifice and strive towards that elusive harmony which prioritises citizen welfare (yogakshema), even while upholding the supremacy and sanctity of the Constitution.

(Commodore C Uday Bhaskar, Director, Society for Policy Studies, has the rare distinction of having headed three think tanks. He was previously Director at the National Maritime Foundation (2009-11) and the Institute for Defence Studies and Analyses (2004-05). He tweets @theUdayB. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)