Vice President of India Jagdeep Dhankhar is now the highest constitutional authority to publicly criticise the collegium system of appointing judges to the Supreme Court and high courts. In his first address as the chairman of Rajya Sabha, Dhankhar made scathing remarks against the Supreme Court for striking down the National Judicial Appointments Commission Act, which was enacted as a replacement to the collegium system.
But the Supreme Court, like it had in 2015, is actively defending the collegium system today as well. It has shown its displeasure over the statement made by Law Minister Kiren Rijiju, who called the collegium system “vague” and “alien”. In a follow-up action, a three-judge bench of the Supreme Court told the Narendra Modi government that the collegium system is the “law of the land”, which should be “followed to the teeth.”
But it wasn’t always like this. Judges were appointed by the executive, a system that the Modi government wants the Indian judiciary to return to. The collegium system of appointing judges came about only in 1993. A nine-judge bench of the Supreme Court changed the meaning of “after consultation with” to “after concurrence with” in Article 124(2) of the Constitution, taking away the executive’s say in the appointment of judges. This seemingly innocent and innocuous change in semiotics was, in reality, an act of rewriting the Constitution by the judiciary, an act that had thrice been rejected during the Constituent Assembly debates.
So what were the circumstances under which the collegium system was born?
In this article, we will trace the moment, the historical juncture when the collegium system came about. We argue that during the 1980s and early 1990s, the political landscape of India was going through a process of metamorphosis and the ‘upper caste’ hegemony in legislature and executive was on the wane. The number of OBC (Other Backward Classes) legislatures was increasing and the pressure was so high that, on 7 August 1990, Prime Minister V.P. Singh implemented the ten-year-old Mandal Commission’s recommendations that reserved 27 percent jobs in central government services and public sector units for the OBCs. The ‘upper caste’ elites panicked.
The collegium system was an ‘upper’ caste response to this historical process which scholar Christophe Jaffrelot has famously called the Silent Revolution. This was possibly an attempt to keep at least one arm of the power structure in the control of the ‘upper’ caste elites.
Problem in existing explanations of genesis of collegium system
An unanswered question prevails when it comes to the collegium system–why did the Supreme Court take control of judges’ appointment only in the 1990s? Why did it not do so in the 1960s, 1970s, or even 1980s?
After the first democratic upsurge of 1967, which had resulted in non-Congress governments in various states, 1977 was the watershed year in Indian political journey when the national consensus of Congress being the ruling party of India was broken. The social coalition forged by the Congress since the 1950 was not able to fulfil the aspirations of large sections of the subaltern social groups.
Though the upheaval of 1977 was not led by the subaltern castes and communities, they were present there in the Total Revolution of Jayaprakash Narayan. This kindled the aspirations of the backward caste groups across the nation and their number in the legislature started increasing. In 1977, two OBC leaders – Ram Naresh Yadav and Karpoori Thakur – became chief ministers in Uttar Pradesh and Bihar. They introduced reservation in government jobs for the backward classes in their respective states.
Still, the process of subalternisation of politics largely remained confined to the states. Warning bell rang when these social groups came in large numbers to the Lok Sabha in 1989 and V.P. Singh became the prime minister with the help of these groups. The decade of the 1990s is known as the beginning of political uncertainties and social contestations. In the 1989 Lok Sabha election, no single party could get a majority, and Indian democracy entered the era of coalition government thereafter.
In fact, political scientist Atul Kohli famously referred to that period as ‘India’s Growing Crisis of Governability’. Similar arguments were also given by other political scientists such as M.P. Singh and Rajni Kothari in their respective articles – The Crisis of Indian State and The Crisis of Moderate State and Decline of Democracy. It was argued that due to coalition governments, there would not be stability in policy-making, and hence the decisions of governments would not be predicted.
Along with the emergence of coalition governments, the decade of 1990s is known for the implementation of the Mandal Commission report, which paved the way for entry of backward castes in the public offices hitherto dominated by the ‘upper’ castes. Political sociologist Christophe Jaffrelot finds that the decade of the 1990s is marked with the rise of backward castes in Parliament. In response to the crisis of Indian State/democracy hypothesis, Yogendra Yadav termed the rise of backward and Dalits in Indian democracy as Second Democratic Upsurge and Lucia Michelutti argued it to be Vernacularisation of Democracy, which has increased participation in the democracy. Recently, political scientist Pavithra Suryanarayn has demonstrated that the rise of backward castes have generated fear among ‘upper’ castes, particularly the Brahmins, that they would lose their social status, which comes from losing public office – a position of power and command – to the backward castes.
It was in this social-political context that the Supreme Court’s 1993 judgment in the Second Judges case, which introduced the collegium system, had come. Prior to this judgment, there had been two law ministers from backward castes — P. Shiv Shankar and B. Shankaranand. The two had pushed names of judges from backward castes. In fact, the process of appointment of judges from the backward castes started after the First Judges case in 1981, which gave the Union government the ultimate power of appointment in case of disagreement between the President and the CJI. There was already growing public contestation among judges for the appointment of judges from SC/ST community.
Insulating judiciary from the Silent Revolution
The analysis of the socio-political context around the genesis of the collegium system suggests that it came into existence to insulate judiciary from the rise of lower and backward castes in legislature and executive. It was perhaps a revolt of India’s social elites against the empowerment of the marginalised, especially the OBCs. The Congress party, which was ruling the country at the time, could not take a firm stance because it was fearful of harming the elites who were strong supporters of the party.
An interesting fact is that Congress leader and Prime Minister P.V. Narasimha Rao was the law minister in 1993, while Kapil Sibal was the lawyer arguing in favour of the collegium system in the Supreme Court.
“it is essential that consultation must be institutional in the sense that the Chief Justice of India must, before expressing his view, consult two or three of his senior colleagues who can enlighten him on the merit of the recommendation made by the Chief Justice of the concerned State. Such a view when expressed would be the view not merely of the Chief Justice of India but of the judicial family as such; it must, therefore, carry weight and should be binding on the President of India,” Sibal had argued in the Supreme Court.
Sibal went on to become the law minister during the Manmohan Singh government. The Congress came back to power in 2004, but did not try to reverse the collegium system because the ecosystem of elites, which largely comes from urbanised upper castes, has been the beneficiary of this system.
Another important fact is that on 26 October 1990, former Chief Justice of India Justice Ranganath Mishra formed the nine-judge bench to hear the Second Judges Case. Other than Justice S. Ratnavel Pandian, all other judges belonged to the upper castes. After his retirement, Justice Mishra was appointed as the first chairman of the National Human Rights Commission (NHRC). Later on, he was nominated to the Rajya Sabha in 1998 and remained its member until 2004. He headed another commission during the UPA government for examining the claims of Christian and Muslim minorities for inclusion in Scheduled Castes, which shows they remained in the good book of the Congress party.
The collegium system delivered its promises to the upper caste elites. The Centre has been requesting the Chief Justices of high courts and the CJI to give due consideration to suitable candidates from the SC, ST, and OBCs while sending proposals for appointment of judges. But the high courts and the Supreme Court have remained mostly upper caste territory. The social aspects of the judgements of the courts are beyond the scope of this article, so we are not venturing into that domain.
Arvind Kumar (@arvind_kumar__), PhD in Politics, Royal Holloway, University of London, and Associate Fellow of Higher Education Academy (AFHEA), United Kingdom.
Dilip Mandal is the former managing editor of India Today Hindi Magazine and has authored books on media and sociology. He tweets @Profdilipmandal.
Views are personal.
(Edited by Prashant)