Can India's judiciary maintain its independence?

In recent weeks, a number of senior government officials, including Law Minister Kiren Rijiju and Vice President Jagdeep Dhankhar, have hit out against how judges are being appointed in the country.    

In India, judges for the Supreme Court and high courts are appointed through a  quarter-century-old mechanism that involves both sitting judges and government officials.

A group of senior judges, known as the collegium, puts up candidates' names to the Law and Justice Ministry, and these names are approved if they clear security checks.

This ensures that the government plays a minimal role in judges' selection and is involved only at the concluding stage.

While supporters argue that the system is needed to ensure judicial independence, critics describe it as opaque and unaccountable.

The increasingly public attacks by senior members of government targeting the judiciary have reignited debate about whether elected representatives should have a say in the process.

Bigger role for Modi's government?

Legal experts and some former judges believe Prime Minister Narendra Modi's government is seeking a bigger role in the selection of judges.

The disagreement highlights not only the need for transparency and accountability in the process but also the delicate balance of power between the various branches of government.

Gautam Bhatia, a lawyer and constitutional scholar, pointed out that the frequency, intensity, and directness of the attacks by the government are quite unprecedented.

"Executive attacks on the court now occur on a weekly basis. These attacks question not only the method of judicial appointments, but also one of the apex court's most famous judgments, which held that there exists a basic structure of the constitution beyond parliament's competence to amend," Bhatia said.

"This is widely perceived to be an important bulwark against a totalitarian evisceration of the constitution."

Criticism of the current system

It is not the first time Modi's administration has been accused of trying to gain greater control over judges' selection.

In 2015, the government brought in the National Judicial Appointments Commission Act, which gave the executive a greater role in such appointments. The legislation, however, was struck down by the Supreme Court.

The appointment of judges has been a long-standing tug of war between the judiciary and executive in India.

The government had enjoyed primacy in selecting judges until 1993, when the top court instituted the collegium system by ruling the executive is bound by the advice of the judiciary when it comes to judge selection.

It's not just members of the ruling Bharatiya Janata Party (BJP) who criticize the current system. 

"The present collegium system is opaque and its functioning is flawed. This is not a new problem but has been persistently critiqued for decades," senior advocate Rebecca Mammen John told DW.

However, she pointed out that the alternative offered by the government throws up even more sinister challenges.

"The government wants to appoint 'yes persons' to these high constitutional posts to leverage their stand within the courts. That must be avoided at all costs and the independence of the judiciary can be asserted only by the judiciary who ordinarily should tolerate no governmental interference," John stressed.

Pamela Philipose, a senior fellow at the Indian Council of Social Science Research, expresses similar concerns.

"The recent spate of salvoes against the judiciary and the collegium appears to be driven by a quest for a committed judiciary — one that is more than willing to accommodate itself to the government," she said.  

"The concern is that a majoritarian government, such as the one presently in power in New Delhi, could make ideologically driven appointments that could severely compromise the independence of the judiciary."

Shortage of judges and pending cases

Anjana Prakash, a former high court judge, pointed out that judicial appointments are turning out to be an extremely fraught exercise, given the disagreements between the executive and the judiciary.

"The government finally clears the names of judges for appointment and transfers. However, the government is not satisfied with this power alone. It wants control over the initial selection as well whose primacy is with the collegium," Prakash told DW.

The dispute has worsened the problem of a shortage of judges and pending cases in Indian courts. Official data shows four out of every 10 judicial seats in high courts are currently empty, and there are over 70,000 cases pending before the Supreme Court and over 5.9 million cases before the high courts.

Rijiju, the law minister, said in parliament in December that 165 high court judges were appointed last year against 331 vacancies.

The government recently cleared the appointment of new judges to the Supreme Court, in a sign that the collegium system is here to stay — for now.

Prakash said the dispute has turned into a power struggle. 

"Not once has the government said the persons selected and recommended were not fit to be judges. If they have objected, it is for other reasons but certainly not merit. I am surprised that no one is talking of this," she said.

Edited by: Srinivas Mazumdaru