Editorial Analysis – Politics and ideology within the portals of the judiciary

Source – TH

• Prelims: Supreme Court, collegium system, NJAC, CJI etc
• Mains GS Paper I and II: Structure, organization and functioning of judiciary, Issues with the collegium system etc

Key Points

Judge Paul Leahy-“A judge is a lawyer who is a politician who has a friend,

About the Issue

Collegium system

• The appointment and transfer system of judges has evolved through judgments of the Supreme Court (SC).
• The SC collegium is headed by the Chief Justice of India (CJI) and four other senior-most judges of the court.
• The High Court (HC) collegium is led by its Chief Justice and two other senior-most judges of that court.
• Ordinarily, one of the four senior-most puisne Judges of the Supreme Court would succeed the CJI.
• Situational: If the successor Chief Justice is not one of the four senior-most puisne Judges, he must be made part of the collegium.

Issues with Collegium system

• An extra-constitutional or non-constitutional body is established by Supreme Court judgments.
• The collegium does not include non-judges from the executive, the Bar, etc.
• The system lacks transparency, resulting in opaqueness.
• The system allows for nepotism.
• The collegium may overlook talented junior judges and advocates.

Why is the Supreme Court of India a political court?

• The court is the final arbiter of political disputes.
• Judges’ political and ideological positions can influence their judgments, particularly on contentious political questions.
• According to philosopher-jurist Upendra Baxi, the court is a center of political power that can influence the agenda of political action, which is what power politics is all about.
• The court is often pulled into the politics of both the establishment and the opposition.
• In certain situations beyond the court’s control, it can be used for purely party political ends.

Evidence as judgments and appointments

• Hindutva judgment (1996).
• ADM Jabalpur (1976) to the Indira Gandhi government.
• R. Bommai (1994) that had upheld the dismissal of the governments in Madhya Pradesh, Rajasthan and Himachal Pradesh.
• Secularism as the basic structure.
• Rafale verdict (2018) before the general election in 2019.
• Final judgment in the Ayodhya case (2019) with huge political significance.
• Pegasus order (2021) of the Chief Justice of India (CJI) on constituting an independent probe.
• Upholding of reservation for the economically weaker sections reservation (2022) amendment.
• Demonetisation (2023) with significant political victories for the government.
• Ongoing Shiv Sena case with political implications.

Cases with political sensitivity that are pending

• Challenges to the electoral bonds scheme
• Citizenship (Amendment) Act
• Dilution of Article 370.

Examples of Public Interest Litigation (PIL) driven by political motives

• Changing names of over a 1,000 places
• Uniform divorce law
• Anti-conversion laws
• Love jihad
• Women’s entry in mosques

Instances of judges with ideological inclinations, ranging from left, centrist, to right-leaning

• Justice V.R. Krishna Iyer, who had left-leaning ideology, was a Minister in the communist government in Kerala.
• Justice Baharul Islam, who represented Congress, was an elected member of the Rajya Sabha.
• CJI Subba Rao was the Opposition candidate in a presidential election.
• Justice Guman Mal Lodha had rightist leanings.
• Justice K.S. Hegde became Speaker in the Janata government.
• Justice Vijay Bahuguna was Chief Minister of Uttarakhand.

The appointment of judges by overruling the judiciary

• Justice M.H. Beg was appointed on the directions of Prime Minister Indira Gandhi, overruling CJI Sikri’s opposition.
• Justice D.G. Palekar was appointed due to his close proximity with the then Law Minister.
• Justice S.N. Dwivedi was related to H.N. Bahuguna.
• CJI Sikri had serious reservations about Justice Dwivedi’s elevation.

Independent judgements

• In Champakam Dorairajan (1951), the reservation policy of Madras was struck down by a 7:0 majority.
• In I.C. Golaknath (1967), the Supreme Court denied Parliament the power to amend the Constitution and held that fundamental rights are necessary for human personality development.
• In R.C. Cooper (1970), the top court (10:1) struck down the historic bank nationalization decision.
• Maharajadhiraja Madhav Rao Scindia (1971), abolition of privy purses was also struck down by a 9:2 majority.
• Kesavananda Bharati (1973), the basic structure theory was introduced to restrict Parliament’s power to amend the Constitution.
• In Raj Narain (1975), Justice Jagmohan Lal Sinha struck down the Prime Minister’s election.
• During the Emergency, nine High Courts upheld the right to habeas corpus against illegal detention.

Way Forward

• Many government-appointed judges have been impressive and able to assert their independence, with a few exceptions.
• The collegium system has not significantly improved the situation since the government still has the final say in judicial appointments.
• It would be beneficial to include the Union Law Minister in the collegium, as is the case in several other countries, so that their views can be heard and reservations discussed.
• Decisions can be made by the majority of the other five judges (CJI plus four judges) if the Law Minister is not convinced.
• The government would have to accept the collegium’s recommendations if they are a party to the deliberations and recommendations.
• The goal should be to end the supersession, cherry-picking of judges, and make the process more transparent.

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