‘GOVERNED BY WHOM?’ – REDEFINING THE ROLE OF HIGHER JUDICIARY, DIVERSITY AND JUDICIAL LEGITIMACY IN THE INDIAN CONTEXT

Abstract

The constitutional design of the structure of India’s apex court put the Supreme Court and High Courts almost in the same position when it comes to adjudication of constitutional cases. High court decisions can be appealed before the apex court since it is the court of last resort. The Supreme Court not only acts as a court of last resort but also for violation of fundamental rights it acts as a court of first resort. Given this kind of vast power arrangement, undoubtedly, the Supreme Court of India enjoys a very powerful status amongst other apex courts worldwide. Due to such an arrangement of power, the appointment process has been the big stick. India was never averse to representation on the lines of caste, religion, gender etc. in its public employment and educational institutions. Historically, judicial appointing authorities have taken into consideration ‘religious and regional diversity’ factors while selecting judges, despite Law Commissions’ strong objections. Various judgments have highlighted that “social reflection” of the society, along with other qualitative markers must be taken into account in making appointments in order to give them some democratic legitimacy. However, how these markers are to be assessed and measured has been left dangling to the “consultation” process of the collegium. Due to the lack of a transparent mechanism for measuring these markers, coupled with an expansive governance oriented role of the higher judiciary, the question “who are we governed by?” has become quintessential. In light of this backdrop, the paper briefly articulates the burden of the expanded role of the judiciary and then moves on to explore how this expanded role has opened a pandora’s box and led to question about who the judges are, how they are being selected and how legitimate are their adjudication process from a democratic point of view.