Column | Salman Khurshid On The Importance of The Judicial Wing In Democratic Governance

Institutional reform in contemporary India is uniquely difficult, if not nearly impossible. We are an extremely complicated society and, as Amartya Sen calls us, argumentative in our disposition. Of course, argumentation is not necessarily disruptive of democratic ethos, so long as there are adequate elements of a consensual approach to national issues and attitudes.

Whilst there are many features of national existence that deserve a careful look on the occasion of Independence Day 2026, I chose to reflect on the system of appointment of appellate judges, who are increasingly engaged in deciding how we conduct ourselves as persons and citizens.

We hear a great deal about constitutional morality in recent judgements of the Supreme Court. It takes some effort to explain to ordinary people how constitutional morality differs from morality as we commonly understand. It is in essence the distilled combination of values of our society on which there is widest consensus. The framework that supports this is the holistic picture of the Constitution with its basic structure. That was theoretically conceived when the Constitution was drafted by the founding fathers, although it took many more years for the Supreme Court to amplify it in Keshavnanda Bharati case. Broadly speaking, the Preamble of the Constitution sets the tone as follows:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation

These are the critical nodes of our constitutional existence and no transitory political ideology can alter them. From leftist, marxist parties to left of centre socialists to right wing majoritarian outfits, all perforce fit themselves into the constitutional framework, even if on certain aspects they periodically express reservations. An appellate judge, no matter what social and political background she has been nurtured in, would have to function consistent with the guard rails of the Constitution. The question, therefore, is about how we should choose appellate judges to work effectively in that backdrop to ensure justice to citizens as per the law?

System in Other Countries

Let us briefly examine the different methods for appointment of judges in comparable democratic jurisdictions. The United States Constitution enables the president to nominate judges to the highest court entirely of the president’s choice, but with some scrutiny by the Judicial Committee of Congress, usually on party political considerations. The voting record of the Supreme Court judges, who hold office for life, seldom betrays their political allegiance.

The UK has reformed the system of appointments through the Judicial Appointments Commission. It has 15 members, 12 of whom are appointed through open competition. The other three are selected by the Judges’ Council and the Tribunal Judges’ Council. The chair must always be a lay member, while out of the 14 other commissioners, seven are holders of judicial office, five must be lay members and two must be practising lawyers, qualified as barristers, solicitors or Fellows of the Chartered Institute of Legal Executives. The statutory arrangement has worked well according to reports available. But then, the previous arrangement worked reasonably well too, although it could not claim diversity inputs in the selection process.

Our own attempts to infuse greater transparency and public accountability in the selection of appellate judges have largely been stalled by the Supreme Court on the pretext of the independence of the judiciary. Of course, that is not to say that incremental improvements have not been made directly through judicial orders or indirectly influenced by them. Thus, presently, the Collegium of five senior judges, including the Chief Justice, choose new judges to fill vacancies, but the last word is with the government. Many people argue that judges choosing their successors and colleagues is an incestuous exercise, but other than popular narratives, there is little data that points to the relative quality of appointments over the period when, formally, the government had a greater say and later, with the enhancement of the role of the Collegium.

The Supreme Court struck down Constitutional Amendment 99 and the National Judicial Appointments Commission (NJAC) in the belief that injecting the opinion of non-judicial members, including two nominated lay persons and political functionaries, would seriously compromise judicial independence. The 2016 Bench of five judges, including the Advocates on Record case, resisted attempts to review the earlier nine judges’ view, underscoring the primacy of the judiciary in the matter of appointments.

This area has no easy answers. Respect and concern for the dignity of judges is as much a part of a fundamental commitment as adherence to the rule of law. We celebrate democracy, but ever so often are tempted to manipulate it to suit our individual and collective ambitions in society. We have seen most recently that the right to protest peacefully is universally acknowledged, but there are real or imposed perceptions of peaceful protest.

The limits of passive resistance are tested in conditions of unprovoked force used by authorities. The jury’s view, if one might use that expression, at present, is reflected in the series of judgements of the Supreme Court leading up to the 2016 reiteration that the NJAC, in any manner and form, would interfere with the independence of the judiciary. It is dangerous to adopt systems that work elsewhere, although willingness to learn from the experience of others can always be useful.

In the circumstances, given the growing impact of the appellate judiciary, we may be well advised to take an objective look at our judicial system. Even for the NJAC, the opinion of widely respected former judges and scholars was sought. Interestingly, the opinion of former judges is often at variance with the judicial opinions that mould the decisions of the highest court.

Retirement Age

Other than the process of selection and appointment, there are numerous other dimensions that need to be addressed. Do our appellate judges retire too early at 65 compared to 75 years in the UK and the life tenure of US judges? Issues like post- retirement engagement in tribunals remain controversial, so much so that several outspoken judges have consciously refused to accept assignments.

Whatever procedure we choose to adopt, there will always be the issue of transparency versus dignity and privacy. The right to know has to be preserved without unreasonable intrusion into a person’s private life. The rejection of a claim to elevation to the high court or from there to the Supreme Court may have valid reasons in the eyes of the law, but its impact on the standing of the individual candidate can be devastating, possibly impacting the ability to continue in the office the person holds.

The judicial wing of our democratic governance is more, not less, significant than the legislative and executive wings. They all have their own ways of earning respect and awe, with the other two wings having an inherent process of periodic renewal. The judicial wing works quietly but steadily, generation after generation of persons in robes. They need our complete institutional support to fulfil the enormous task of resolving conflicts that arise in our collective existence, particularly as society gets increasingly complex. Next to the Almighty, we have but the judges to trust. Of course, we know that, like all humans, they too are not infallible, but by nature and training, seldom err. It is our duty to contain and smoothen the consequences of any aberration for the good of society. Just as people say democracy might be imperfect but it is the best way we have to survive, similarly the judicial system might not be perfect, but we have no better substitute.

(Views expressed are personal)

Salman Khurshid former Law Minister

(This story appeared in Outlook magazine’s August 31 issue, 'Whose Idea of India?', in which India’s noted public intellectuals, policymakers, cultural practitioners, political leaders, scholars and economists write in detail about the idea of India they believe can best secure the nation’s future as we celebrate 80 years of independence.)