Should Judges Answer to the Constitution or to a Constituency? A Republic Day Poser

What, we ask the Union law minister, may 'the people' do to the judges they are watching in the event that they are displeased? A January 6 comeuppance?

The Union law minister, Kiren Rijiju, has added a new ominous dimension to the on-going debate about how judges should be appointed.

Speaking to the Bar Council in the National Capital, the honourable minister has rather let the cat out of the official bag by lamenting that whereas politicians are elected, and thus answerable to the people, judges, not being elected, are answerable to no one.

Further, in a rather Trumpean phrase, he made it clear to them that the people are “watching them”. What, we ask, may “the people” do to them in the event they are displeased, a January 6 comeuppance? January does seem to be a menacing month all around, no?

The minister of course chose not to remember that judges are liable to be impeached by parliament (representing the people, or does it?) if ever it transpires that they stray from the straight and narrow  

But, what other inferences may be drawn from the minister’s averment?

Would he rather incorporate the American system where judges to the District Courts are elected (and thus expected to have predilections of a political kind), and those to the Supreme Court are nominated by the executive head along clearly enunciated ideological principles, and for life?

This would presuppose that the right-wing expects both to win all judicial elections at the lower levels, and successfully “pack” the top court, as in America, with right-wing “Justices” till they drop dead, so that any new government may be shackled from ever getting judicial determinations to their liking?

After all, the Trumpean Supreme Court did overturn the 50-year-old legislation pertaining to the right of abortion in the famous Roe vs Wade case to the delight of the nationalist red-necks for whom “family values” imply the subjugation of the female body to male will.

Might not a congenial top court here too overturn the basic structure doctrine and pave the way for the executive to mould the constitution “nearer the heart’s desire”?

Make no mistake, these are now real possibilities in the offing, if not probabilities round the corner.

However the present ruling political forces may polemically revile the Emergency era in such matters, they do seem to salivate at the prospect of emulating some lessons thereof – the notion of a “committed” judiciary being one.

No judge is ever as great as a “bandwagon” judge, eh?

As to the people “watching” the judges, of course, they watch the judiciary all the time, and have done so for seven long decades.

They seem to think that, when all is said and done, they trust the judiciary rather more than other branches of the state, even when it comes to swallowing such judgments as happened, for example, in the Ayodhya dispute case, the Rafale case, the Gujarat riots case etc, to name but a few – all of which went the way the minister would have liked them to go.

You see, “the people” do not comprise only the 37% who voted for the ruling party; surprise, surprise, the other 63% are also part of “the people.”

So, why the plaint when such consequential cases were decided to the delight of the powers that be?

Simple: the executive of the day would like this to happen in pretty much each and every case in which the government of the day, or political forces that prop it are in contest with opposition of any description, period.

Are these not precisely the cogitations which persuaded the Constituent Assembly not to make the judges’ office an elected one, so that no judge may ever be obliged to a political constituency, but remain whole-heartedly committed to the allegiance to uphold the constitution and the law regardless of who the litigant be or where the chips fall?

As to the controversy about the Collegium system: it is nobody’s case that this system does not leave something to desire in terms of transparency.

Also read: The Things We Learnt When the SC Collegium Finally Became ‘Transparent’

Yet, look at the pitfalls: now that the Supreme Court has just made public the Intelligence Bureau and Research and Analysis Wing (RAW) reports on two candidates that were proposed by the Collegium to the government, it turns out that one was rejected by the executive on grounds, allegedly, of LGBT orientation (as though that were a crime), and the other because the candidate in question had shared opinion critical of the prime minister!

Clearly, the executive is mightily unhappy that such details were made public.

Many ask the question also as to what remit did the RAW (an intelligence agency to counter external threats, like the CIA in America) have in the matter of scrutinising candidates for appointment as judges.

So, it is not as though transparency does not have its own problems in such matters of high regard. And it is, also, not as though it is transparency that the executive desires either, but dividends of another nature perhaps.

The citizen, however, would not mind if some mechanisms were devised that would render the appointment process more accessible to common view and, importantly, to common credence.

As in all cases, it is dialogue among authorities that alone can lead to an acceptable resolution of the imbroglio, as recently suggested by the grand old warrior for judicial independence and democracy, Fali Nariman, in an interaction with India Today.

Conceding that there was a real danger of the judiciary being required to play second fiddle to the executive, he also did think the old proposal of 2003 of a five-member Commission, comprising three of the senior-most judges of the Supreme Court and two other suitable members representing the executive view and the general view, was worthy of revival; and that in the interest of averting a constitutional crisis and a take-over bid on either side, the old practice of face to face conversation on a sustained basis between the chief justice and the law minister deserved to be revived as a good democratic practice.

As to the “people”, judges are not the only ones they are “watching,” are they?

Meanwhile, it is primarily incumbent on the government of the day to take care that bad histories do not repeat themselves, if, for example, pronouncements in such forthcoming cases as those bearing on the electoral bonds scheme and the reading down of Article 370 do not go its way, just as the nation duly accepted what the top court had to say on Rafale, on Ayodhya, on Gujarat killings of 2002.


Notice what the honourable President, Droupadi Murmu, has said in her address to the nation: that the constitution has withstood the test of time, and that our cultural diversities have not divided us but strengthened our unity.

To that, we say amen.

May the Republic be with us for all times to come.