An independent judiciary is regarded as a basic feature of our Constitution and the Republic. Yet, the interference of the executive in the affairs of the Court is an unfortunate empirical reality in India. In Kesavananda Bharati (1973), the majority held that Parliament’s power to amend the Constitution is not unlimited. There cannot be an amendment against the basic structure of the Constitution and such constitutional amendments, if made, could be struck down by the Court in the process of judicial review. It was the most formidable and one of the earliest instances of judicial activism in India. It was also a blow to then Prime Minister Indira Gandhi’s legislative majoritarianism. Yet, after the landmark judgment, three judges on the Bench who disagreed with the Centre – justices J M Shelat, A N Grover and K S Hegde – were superseded and justice A N Ray was appointed the Chief Justice of India (CJI). During the Emergency, justice H R Khanna, the lone dissenter in ADM Jabalpur (1976), where the majority ruled in favour of the suspension of fundamental rights, faced a similar fate. He too was superseded, and justice MH Beg was made the CJI. Justice Khanna, thereafter, resigned.

Some of the recent episodes of appointments and non-appointments in the judiciary and a series of “punitive” transfers recall the executive aggrandisation of the past. The judiciary too has been criticised for not being sufficiently assertive when the executive dictated terms and conditions that lacked legitimacy. There is a general grievance in the legal fraternity that the system did not treat judges of integrity such as justices S Muralidhar and Akil Kureshi fairly.

In the Constitution, Articles 124 and 217 talk about the appointment of judges to the SC and high courts respectively. Article 222 talks about the transfer of a judge from one high court to another. Pertinently, the constitutional provisions only say judicial appointments and not selection. It was to fill the space left by the Constitution on selection to the higher judiciary that the device of Collegium was invented by the SC in the Second Judges Case (1993). It was reiterated later in the Third Judges Case (1998) and the Fourth Judges Case (2015). These verdicts, however, could not envisage better models. The Court also failed to evolve a comprehensive transfer guideline.

The problem is systemic and structural. Unlike some other modern democracies, India has been slow in bringing about institutional reforms within the judiciary. Chief Justice Dhananjaya Chandrachud’s efforts to modernise and democratise the system, especially through digitalisation and increased participation of diverse stakeholders, have altered the scenario.

There is also a need to evolve an institutional mechanism that deals with conventional issues such as the executive-judiciary tussle in judicial postings. The Indian judiciary needs to have a praxis for its democratisation, which will ensure its independence and enforce accountability. Punitive transfers of judges of the higher judiciary should be prevented by an appropriate mechanism. There is a need for institutional safeguards that preserve the judiciary's autonomy and accountability. It should start with the appointment of judges to the constitutional courts.

In the United Kingdom, it is a Judicial Appointment Commission that chooses judges for higher courts; neither the judiciary nor the executive has predominance. In India, there has been a perpetual fight between the Court and the executive over powers to make postings. Though the National Judicial Appointment Commission (NJAC) wanted to curtail the predominance of the Collegium, it suffered from the vices of executive dominance in the Commission. India does not have a “clearly defined criteria” and a “publicly declared process” for appointment and transfer of judges, as suggested by the Commonwealth Latimer House Principles. A majority of the Commonwealth nations have independent commissions for judicial appointments.

The United States (US) system, where judicial appointments are essentially political, may not be a good model for India. Though the pre-selection debate in the US has a deliberative content, it is doubtful if such a discourse would be meaningful or effective in India. Open interviews for judicial appointments, as it happens in South Africa and Kenya, might be effective provided such a method is adopted at the instance of an independent select body. In Kenya, the “Judiciary Transformation Framework” evolved by former Chief Justice Willy Mutunga yielded good results which enhanced the people’s faith in the system. The Judiciary Ombudspersons and Court Users’ Committees were radical measures in the Kenyan context. These demystified the judicial institution and ensured transparency in the affairs of the Court. In 2016, the Canadian government initiated landmark reforms by enabling every qualified person to apply for appointment as a judge of the country’s SC. The advisory board of the SC must carry out the selection. Yet, in the advisory board, there are no judges or any ministers.

Judicial renovation does not happen on its own. Judicial reform is a political issue, not a legal one. We have a lot to learn both in politics and law from around the world. As Amartya Sen put it, “Debates about justice – if they are going to relate to practicalities – cannot but be about comparisons”.

Kaleeswaram Raj is a lawyer at the Supreme Court of India. The views expressed are personal