Securing the Judicial System from Political Retribution by Prof G Mohan Gopal https://www.theleaflet.in/securing-the-judicial-system-from-political-retribution/ September 5, 2021 Flaws in the collegium selection process for appointment of judges to the Supreme Court and High Courtsmake it amenable to opacity, arbitrariness and executive influence,
It is clear therefore that the opposition to Justice Kureshi comes from outside the judicial system.
The momentous issue of immense Constitutional consequence arising from the Kureshi saga is that it exposes the grave risk that external retribution harboured by individuals or groups outside the judicial system against judges solely on account of their conscientious judicial decisions can be delivered through the Supreme Court collegium in a sustained and un-abating manner over a prolonged period across a changing collegium membership.
This is a grave threat to the rule of law and independence of the judiciary. No High Court judge in our country will be secure unless this vulnerability is corrected.
In a rule of law democracy, no State action should be allowed to take shelter behind the feudal history of arbitrary judicial appointments that are beyond review. If the removal of Supreme Court and High Court judges is subject to judicial review (as it is), so should their appointment.
The Supreme Court of India should review the unjustifiable failure of the collegium to recommend Justice Kureshi’s appointment to the Supreme Court. It should also review the constitutionality of the collegium system in light of the failures identified by the Supreme Court in November 2015, and make the required changes on the judicial side to make it constitutionally compliant.
In the longer term, we must work to end the oligarchic system of judges appointing themselves. India deserves a modern, transparent, fair, democratic and objective system for selecting our High Court and Supreme Court judges in line with our Constitutional ethos.