Structure, organization and functioning of the Judiciary
Improving the collegium system
Recently, the Supreme Court’s collegium published a resolution promising to hereafter make public, on the court’s website, its various decisions, including its verdicts on persons nominated for elevation as judges to the high courts, its choices of candidates for elevation to the Supreme Court, and its decisions on transfer of judges between different high courts. These results will be accompanied by the reasons underpinning the collegium’s choices.
The move strikes us as both necessary and important as-
It will help bring transparency into a system that has been notorious for its opacity.
The initiative adds a veneer of respectability to a mechanism that lacks any constitutional basis.
Case studies: Lack of transparency
In the cases of A. Zakir Hussain and Dr. K. Arul, candidates nominated for elevation to the Madras High Court, the collegium has verbatim published the following statement of rejection: “keeping in view the material on record, including the report of Intelligence Bureau [IB] he is not found suitable for elevation to the High Court Bench.” The details of what the IB’s reports might contain and the apparent materials on record remain concealed.
The nomination of Vasudevan V.N., a judicial member of the Income Tax Appellate Tribunal, was not accepted saying “While one of the two consultee-colleagues has offered no views about his suitability, the other colleague has not found him suitable for elevation,” the report reads.
The collegium, ever since its inception, following the Supreme Court’s judgment in what is known as the Second Judges Case (1993) has been enveloped by a sense of confusion.
The present revelations, much opposed to their perceived objective, scarcely make the system more transparent. In Mr. Vasudevan’s case, for example, we don’t know which of the “consultee-judges objected to his elevation, and why the judge interviewed found him unsuitable.
These issues concerning the system employed to appoint judges to the Supreme Court and the high courts are of particular salience.
The judiciary was regarded by the Constitution’s framers as central to the social revolution that the document was meant to herald. The historian Granville Austin saw the judiciary as critical to “upholding the equality that Indians had longed for during colonial days, but had not gained”.
To ensure that judges would be insulated from political influence, the assembly agreed on a consultative process of appointing judges, a “middle course,” as B.R. Ambedkar described it. T
The Constitution avoided the cumbersome process of legislative interference and the undemocratic provision of a veto to the Chief Justice, and vested in the President the power to both make appointments and transfer judges between high courts.
The President, who would act on the advice of the council of ministers, was, however, required to compulsorily consult certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a high court, the chief justice of that court.
Sankalchand Sheth ’s case, 1977:
When interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But nonetheless the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigours of judicial review. This seemed like a perfectly sound balance. In 1981, in the First Judges Case, the court once again endorsed this interpretation.
The Second Judges Case:
The court overruled its earlier decisions. It now held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates. But, the CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium.
The Third Judges Case, 1998:
The court clarified its position further. The collegium, it said, will comprise, in the case of appointments to the Supreme Court, the CJI and his four senior-most colleagues — and, in the case of appointments to the high courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned.
The court has been keen to hold on to this power.
When the Constitution was altered, through the 99th constitutional amendment, and when the collegium was sought to be replaced by the National Judicial Appointments Commission — a body comprising members of the judiciary, the executive and the general public — the court swiftly struck it down. It ruled, in what we might now call the Fourth Judges Case (2015), that the primacy of the collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.
The 2015 judgment also promised to “consider introduction of appropriate measures”, to improve the “collegium system”. The new resolution is an effort towards this end.
Connecting the dots:
Discuss the issues related to collegium system in India and elaborate how a recent resolution by the Supreme court in this regard is a step forward.
Discuss the evolution of the collegium system in India along with its drawbacks.
TOPIC: General Studies 2:
Parliament and State Legislatures ? structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Establishing intra-party democracy
Recently, the Prime Minister Narendra called for a debate on levels of intra-party democracy in different political parties in India. He also stressed that the quality of a democracy ultimately depends on internal democracy (or the lack of it) in political parties.
Importance of intra-party democracy in the success of a democracy:
In its 170th report in 1999, the Law Commission of India underscored the importance of intra-party democracy by arguing that a political party cannot be a “dictatorship internally and democratic in its functioning outside”.
Intra-party democracy is essential to sustain broader political democracy in a country.
Reasons behind lacking intra-party democracy:
The opacity of political financing necessitates “unhindered top-down control” and “absolute loyalty down the line”.
The fear of party fragmentation—not uncommon in India; also drives the desire for centralized control.
By making it mandatory for the legislator to vote along her party line, the anti-defection law has done immense damage to both intra-party democracy and the accountability of a legislator towards her constituency. It also skews the balance of power between the executive and the legislature. The legislator is no longer empowered to act as an effective check on the government of the day.
Local area development schemes like MPLADS and MLALADS that vest an annual sum with the members of Parliament and legislative assemblies for development work in their constituencies skew the balance in favour of state and Central legislators at the expense of city- and village-level administrators. These schemes unjustly favour the incumbent representative and also exacerbate the problem of patronage politics.
Patronage politics lies at the heart of dynastic succession in Indian politics—a result of control of political parties by an oligarchic elite. Dynastic succession also works as insurance against defections and fragmentation of political parties.
Opacity in political financing, fear of fragmentation and unstable governments, dynastic succession, and lack of intra-party democracy are all mutually reinforcing variables.
Example- In the Indian National Congress, the current leadership of Sonia Gandhi and Rahul Gandhi has systematically destroyed the regional leadership of the party.
Unlike some countries like Germany and Portugal, India has no legal provision for enforcing internal democracy in a political party. There are some related provisions in the Election Commission guidelines but those are neither adequate nor enforceable. In its 255th report in 2015, the Law Commission had suggested some legislative redressal.
Doing away with the anti-defection law, especially for those votes where the survival of the government is not at stake.
Scrapping the MPLADS and MLALADS. Abolishing the MPLADS to finance the state funding of political parties
A partial state subsidy to fund elections and political parties.
There are many options. But all of these will require a willingness by the incumbent political authorities to give up some of their powers. They need to step up to the challenge.
Connecting the dots:
In its 170th report in 1999, the Law Commission of India underscored the importance of intra-party democracy by arguing that a political party cannot be a “dictatorship internally and democratic in its functioning outside”. Critically analyze.
Discuss the reasons behind lack of intra-party democracy in India. Also suggest measures that would help make our politicla parties more democratic.
There can be no solution under the shadow of the gun
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