Mumbai, India – During an unusually hot March evening, a fire broke out at the house of the High Court of Delhi, Yashwant Varma.
The firefighters rushed. As they came out, two released their phones to record half -burned cash bundles. The news channels disseminated images of liquidity strewn in the house, speculating that it was money. The next morning, when the police entered the house, the money had disappeared. In June, an inquiry committee of the Supreme Court had discovered “bad behavior” and proposed the dismissal of Varma.
The case of Varma has sparked a new debate which revealed ancient – and increasingly fractured – flawing lines – between executive and judicial branches, because the administration of Prime Minister Narendra Modi makes efforts to tear off the control of judicial appointments.
In the days following the light, the Indian vice -president Jagdeep Dhankhar was held in the upper room of the Indian Parliament and suggested that Varma, a longtime judge, was corrupt – and that it was the fault of the judiciary to have an opaque system to select the judges.
On paper, judges are mainly appointed by other superior judges without too much interference from other branches of the government. But under Modi, the judges complained that the executive power twists the rules so that he has the last word.
In 2014, a law created the National Commission for Judicial appointment to appoint judges before the supreme courts and raised in such a way that Parliament would have more authority. It was among the first laws that Parliament was adopted after Modi came to power that year, but the Supreme Court canceled it in 2015.
“Give them officially such power will mean that the judiciary would be a low control over the actions of the executive,” said a former main judge of the High Court of Delhi who asked for anonymity by fearing the repercussions.
During the 11 years which followed Modi’s power, the government reduced academic freedom and a limited civil society. In many cases, the media have respected government requests. In 2021, Freedom House, a non-profit organization based in the United States, said that India’s status as a free country had refused “partially free”.
“The higher courts in India are the last control over the government’s authoritarian trends,” said the main judge. “Consequently, who is seated on these benches counts a lot.”
An opaque process
The process of India for judicial appointments before the higher courts is relatively opaque and, according to criticism, not based on objective criteria.
Five senior judges from the Supreme Court form a college that selects the judges. College of three members for the 25 high lessons across the country subject names to the college of the Supreme Court. Their deliberations are not public.
“They explain why a person has been selected, but do not say why another was not,” said Ratna Appnender, lawyer and legal researcher based in Delhi. “There is no clarity for the selection base.”
The college of the Supreme Court sends its recommendations to the Minister of Law. If the minister has reservations, he asked the college to reconsider. The minister has no official veto. But in practice, he exercises a de facto veto, “giving the executive a crucial role in the process of selection and appointment”, according to a January report of the International Commission of Jurists.
‘The system is broken’
Critics of the role of the executive point to the case of the main lawyer and the constitutional expert Saurabh Kirpal, which a college recommended for a judge before the High Court of Delhi in 2017.
Kirpal, an openly gay lawyer, was part of the legal team that has successfully fought to decriminalize homosexuality in India. He was allegedly the first judge of the High Court openly gay in India.
But the minister of Law returned the name of Kirpal to the college, saying that Kirpal’s partner would constitute a security threat because he is a Swiss national. (At least three superior judges had foreign spouses.) The college again recommended Kirpal in 2018, then twice as much in 2019.
At the beginning of 2023, for the first time, the Supreme Court made public discussions on the potential appointment of Kirpal with the executive power. The details revealed that the law of Law admitted to a letter that Kirpal’s sexuality was the question. Kirpal is still not a judge.
“In a mature democracy,” says Kirpal, “when there is a systemic imbalance with regard to the representation of marginalized, this means that the system is broken.”
The way to follow
Giving Parliament more power over judicial appointments would be distorting judicial decisions in its favor, maintains Kirpal. “The largest litigant in this country is the government of India – and it would be to choose who judges the cases.”
Kurian Joseph, a judge of the Supreme Court who retired in 2018, says that this already happens.
“In practice, the executive turned his arm in judicial and had a last word on the appointments,” he said.
Joseph, one of the four judges who annulled the law of 2014 which created the National Commission for Judicial appointment, said that the law would have rendered the judges liable to Parliament.
But a decade later, Joseph says that the commission may have been preferable.
“At least,” he says, “we would know who criticizes.”