The Emergency and the Collegium system

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Hello everyone and welcome to SCO’s channel. I’m Spandana.

There is a lot said about the Collegium system of appointing judges, especially in the recent past after the Justice Varma controversy. Criticism about its lack of transparency and its evolution through judicial precedents has been a recurring theme in public discourse, especially by the Union Executive.

But its establishment and evolution have their roots in one of the darkest periods of India’s legal and political history–the Emergency.

25 June this year marked 50 years since the Indira Gandhi Government declared the National Emergency in 1975. Our Senior Associate Editor, V. Venkatesan, wrote about how the Emergency gave birth to the Collegium system as part of a series of posts we did about the period. If you haven’t read them already, do check them out on our Analysis page now. Let’s get into what VV explored in his piece.

The BJP-led Union Government directed states to commemorate 25 June as ‘Constitution Murder Day’. But even beyond the political optics of the present, the excesses of the Executive during that turbulent period, which is the Emergency, left their imprint on many institutions. Chief amongst them was the judiciary. And our Senior Editor, V. Venkatesan, or VV as we endearingly call him, says that it wouldn’t be a stretch to suggest that compromises and pressures of the time came to shape the judicial views of independence.

A prime example of this long shadow is the Collegium system of judicial appointments and transfers, which evolved through a series of four decisions of the Supreme Court. The eminent advocate, T.R. Andhyarujina, is one of those lawyers who has drawn a direct link between the Emergency and the Collegium. In an essay in 2017, he emphasised how the abuses of the era sparked the reinterpretation of the constitutional provisions governing judicial appointments.

The most appalling of these scarring episodes were the supercession of three judges in the wake of the ‘basic structure’ ruling in Kesavananda Bharati in 1973. Later, in 1976, Justice H.R. Khanna’s dissent in the ADM Jabalpur Case cost him the Chief Justiceship. Under the cover of Emergency, the Government back then also transferred 16 High Court judges, ostensibly in retaliation for their rulings against it. The press was gagged from reporting on these transfers.

It took a while for the judiciary to free itself from the shackles of the Emergency, which ended in March 1977. But after a brief interlude of the Janta Party-led government in 1980, Indira Gandhi’s Congress government was back in power. Towards the end of 1981, the Supreme Court sided with the Executive once again in S.P. Gupta v Union of India. In this case, the Court held that ”consultation” of the Chief Justice of India for higher judicial appointments need not mean “concurrence”. This case is commonly known as the First Judges Case.

In 1990, the Court questioned the correctness of the First Judge’s Case as a precedent. Ultimately, in the Second Judge’s Case in 1993, it overruled the decision and crystallized the Collegium system. It had taken more than 15 years since the lifting of the Emergency to get there.

In 1998, the Court went a step further in the Third Judge’s Case, where it expanded the Collegium system and clarified the executive’s misgivings around the Second Judge’s Case. Remember that it took the period between the First and Fourth Judge’s Cases as recent as 2015 for the judiciary to progressively embolden itself.

In his piece, VV wrote that the Collegium system is not without its flaws, but it is a product of hard-earned historical experience. It’s a memory of a time when civil liberties were at an unprecedented ebb. Therefore, it shouldn’t be brushed away.

Read his full story on our Analysis page now and also subscribe to our newsletters if you haven’t done so already. We bring you crisp and concise newsletters on the most important topics of the Supreme Court.

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