NEW DELHI: CJI B R Gavai and Justice Surya Kant, the next CJI, on Thursday stoutly defended the much-criticised collegium system for selecting constitutional court judges and said it has helped the judiciary preserve its autonomy and independence in administration of justice.CJI Gavai was speaking at Royal Institute of Management in Thimphu, Bhutan, while Justice Kant was addressing Sri Lankan Supreme Court in Colombo. The CJI cited SC’s 2015 judgment striking down the National Judicial Appointments Commission and said granting primary control over judicial appointments to the executive would imperil the independence and autonomy of the judiciary.Justice Kant said the judiciary’s dominant role in appointment of judges to HCs and SC is a compelling “illustration of the doctrine of separation of powers”. The judiciary’s independence and autonomy help it to go beyond simple resolution of disputes or defending constitutional boundaries; it has allowed constitutional courts actively “shape the democratic imagination of a society and to function as architects of democratic life”, he held.Justice Kant said that if separation of powers is the framework of India’s constitutional democracy, then judicial review — Article 32 (a person can approach SC directly over violation of fundamental rights) and Article 226 (a person can file a writ petition in an HC) — is the sustaining force of democracy. The ambit of judicial review extends to constitutional functionaries like EC, Lok Sabha speaker and governors, as well as legislative assemblies. “No act of governance is beyond the purview of judicial oversight,” he stressed.“This expansive power of review is a cornerstone of India’s constitutional democracy and a part of our basic structure, affirming that legality and constitutionality are fundamental preconditions to the exercise of public power,” Justice Kant said.In what reflects the judiciary’s transformative potential to give voice to the voiceless, Justice Kant said, judicial interpretation has resulted in expanding the scope of fundamental rights, leading to legislative action.CJI Gavai said that apart from the broad and purposive interpretation of Article 21 (right to life), SC has consistently held the state accountable for safeguarding and promoting the rights of citizens, compelling govts to translate constitutional guarantees into tangible actions.Public interest litigation (PIL) has evolved as an instrument for protecting human rights and the rights of marginalised and vulnerable communities like bonded labour, undertrial prisoners, migrant workers, manual scavengers, sex workers and pavement dwellers. SC has also brought in electoral reforms by acting on PILs, the CJI said.Justice Kant disagreed with criticism that judicial activism often results in encroachment of the turfs of legislature and executive, and said, “When courts act to empower the powerless, grounded in constitutional text and moral clarity, they do not usurp democracy, they deepen it.”Both the CJI and Justice Kant referred to SC’s landmark 13-judge judgment in the Kesavananda Bharati case in 1973 that established the doctrine of ‘basic structure of the Constitution’. “That judgment transformed the judiciary from a mere interpreter of the Constitution into its guardian,” Justice Kant said.
