An Alternative to the Collegium

NEARLY eighty years ago, the people of India did something remarkable. They finally came together to throw off oppressive rule, and they did so by peaceful methods. That worked because the idea of Independence galvanised a nation. Today, perhaps it is time to look at our situation again, carefully, and with an eye to see which institutions have failed us, and which even retain a semblance of what they are supposed to do.

The Election Commission of India, of course, will fall into a particular category all of its own, of jockeying to lackey. Most of the established and conventional media houses may rank just a bit better. But the institution we must pay closest attention to is the judiciary. This is not just because it is the ultimate resolver of disputes between people, corporates and other entities. It is because the judiciary is vested with the power to interpret the Constitution. The judiciary is the arbiter, enforcer and protector of the Constitution.

Why does the Constitution matter? It matters because this is what brings us all together as citizens of India. It matters because it embodies the best ideas of India — those ideas which the best of us want to see as embodying India. A free society where the individual matters, and the State exists to serve the individual. A society where the people have the ultimate say. A society which is liberal, inclusive and seeks the best development and fulfilment for all. A society which is sensitive to minorities and to those with handicaps and disabilities. We are a privileged country. We are the world’s largest and best mosaic of cultures and faiths — the most amazing house of diversity. This is an India which is worth fighting for.

It is the Constitution which overarches above us, protects India and gives it its shape and structure, fabric and form. So it is our Constitution around which we must rally. It will provide us succour and safety. There is no better and no more powerful icon than this for modern India at the stage we are in. But only if we protect it.

It is therefore a matter of particular dismay when we see judicial institutions crumbling — not under the weight of external pressure, but because of the weakness of those who inhabit them, who cannot shore up the foundations, present a workable interior and a fair outlook, who cannot make a sparkling judicial mansion of law, justice, equity and service to the people.

In the early years of the 19th century, John Marshall, Chief Justice of the United States of America, fashioned the doctrine of judicial review, by which the Court assumed the power to strike down Acts of Parliament which were contrary to the Constitution. This also extended to striking down executive action which went against the chief canons of constitutional values. We embodied judicial review in our Constitution, and in the years before 2000, our Supreme Court extended the doctrine of judicial review in scope and in application to craft a universally admired public interest writ jurisdiction.

The job of protecting the Constitution is the chief business of judges. But in the last twenty years, I cannot remember a significant case of judicial review and assertion, upholding constitutional values, to strike down Acts of the legislature or key inroading of executive action. There has been no shortage of such Acts, but there has been a significant absence of adequate judicial response. The only Act in living memory to be struck down pertained to the National Judicial Appointments Commission. Not quite by coincidence, it interfered with the judges’ self-granted prerogative of appointing judges to the higher judiciary. Other than that, we find no adequate judicial demonstration of constitutional values.

On the other hand, judicial review in India now seems to have moved to judicial assist. This was manifestly so in the recent SIR (Special Intensive Revision) case, where judicial officers of an entire state were drafted to man the Election Commission machinery and mechanisms, and thereby to try and resuscitate an exercise doomed from the start, which should have received the judicial axe.

Recent aberrational statements made by the Chief Justice of India in regard to youth protests, the Bar Council Chairman’s ill-advised venture against NALSAR students and the lackadaisical attitude of the First Bench of the Delhi High Court while hearing cases about atrocities on Jantar Mantar protesters convince us that the quality of those at the highest levels of the judiciary has dropped very, very significantly.

The blame for this must squarely rest on the Collegium which chooses judges. When the judiciary invented this extra-constitutional and “extraterrestrial” system in 1993, it would have been aware that its legitimacy rested not on constitutional foundation, but solely on consistent best performance. The latter was on display for some time. But for many years now, it has dipped into becoming a body marked by favouritism and nepotism; opaque, non-transparent, unmindful of reason and criticism; and, of late, has developed a rather cosy relationship with the executive. Indeed, it seems that we are losing sight of the doctrine of separation of powers and the judicial philosophy of being a check on the government to keep the constitutional balance.

The time has come to invent a radically new method of appointment of judges to the High Courts and the Supreme Court. That initiative is now underway, guided by a group of respected retired judges, leading lawyers and eminent citizens steering a group of talented young lawyers and academics to fashion a document titled “The Alternative” — a replacement for the Collegium system.

This will then be sent across to Bar Associations, judges, law universities and others to compare the existing Collegium system with the alternative based on definite criteria, including transparency, accountability, wide selection choice and efficiency. That result will then be placed before Parliament, which will be asked to pass a law based on a national consensus.

And this time, let us be sure that this will not just be a national consensus among enlightened professionals but will have the power of the youth. A resurgent youth, who have just shaken the highest in the land with their conviction, resilience and strength. They just need the right guidance and support to be fully galvanised. And young lawyers have a lot at stake. For them, it is a choice between an honourable profession and a mercantile activity sans honour.

This is the time to stand up. Because we have our backs to the wall. The advantage of a last-ditch stand is that our energies are redoubled.

Sriram Panchu is a Senior Advocate at the Madras High Court