Senior Advocate Siddharth Luthra, during the Arun Jaitley Memorial Lecture, criticized the collegium system, saying it has “outlived its purpose,” leading to a competitive race among judges for Supreme Court elevation. He supported Jaitley’s view that the scrapped NJAC could have promoted judicial independence and stressed a balanced approach between judicial activism and restraint to protect constitutional rights effectively.
New Delhi: In a recent address at the Arun Jaitley Memorial Lecture hosted by OP Jindal Global Law University, Senior Advocate Siddharth Luthra delivered powerful remarks on the judiciary’s evolving role, the shortcomings of the collegium system for judicial appointments, and the delicate balance required in judicial activism. The lecture, titled “Role of the Judiciary in Protecting the Constitutional Foundations of Law and Policy,” highlighted the pressing need for reform in the judicial appointment process, which Luthra argued has become a race among senior judges vying for seats on the Supreme Court.
Luthra recalled Arun Jaitley’s perspective on the collegium system, noting,
“His (Jaitley’s) view, and one that I concur with, that the collegium system was needed at a point in our Constitutional history but had outlived its purpose leading to restricted tenures at the High Court and Supreme Court, leading to a race amongst senior judges to be accommodated in the Supreme Court which subconsciously has often impacted decision making.”
This critique reflects a widely felt discontent regarding the current method of appointing judges to India’s higher judiciary. The collegium system, which empowers the Chief Justice and senior Supreme Court justices to make these selections, was initially intended to ensure judicial independence. However, Luthra argued that this system has fostered unhealthy competition among judges aiming for Supreme Court elevation due to short tenures, thereby affecting the quality of judicial decisions.
The Unfulfilled Vision of the NJAC
Luthra also referenced Jaitley’s disappointment over the National Judicial Appointments Commission (NJAC), which was introduced by the Central Government in 2015 but was later struck down by the Supreme Court as an attempt to encroach upon judicial independence. The NJAC was envisioned as an alternative to the collegium, aiming to make judicial appointments more transparent and less susceptible to internal biases.
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“Jaitley’s only regret was that the NJAC which was the reform he wholeheartedly supported and which he believed would resurrect and support Judicial independence got struck down in the belief that it was an attempt to curtail Judicial independence,”
said Luthra. For many, this decision was a missed opportunity to strike a balance between judicial independence and accountability, a sentiment that Luthra echoed.
Judicial Independence and Post-Retirement Positions
Luthra went further to point out that the collegium system, combined with the lure of post-retirement appointments, has ironically limited the independence it was designed to protect. Such influences, he suggested, create potential biases in judicial decision-making as judges may subconsciously aim to secure favorable post-retirement roles.
Luthra advocated for judicial independence, especially during times when governments command a majority in parliament.
“To resurrect, he (Jaitley) believed that judicial oversight seen during coalition regimes was needed more in times when the executives comprise governments with brute majorities in parliament and legislatures.”
He highlighted the judiciary’s critical role in protecting citizens’ rights and challenging unjust laws, especially in times of strong majoritarian rule.
Courts’ Role in Policy: Balancing Activism and Restraint
Emphasizing that policy matters, particularly those involving infrastructure or economic planning, should largely remain within the executive’s purview, Luthra asserted that courts should not interfere unless policies directly violate constitutional or statutory provisions. He explained,
“Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making processes and the Courts are ill-equipped to adjudicate on a policy decision so undertaken.”
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Despite these reservations, Luthra believes in a balanced form of judicial activism. He called for judges to find a middle ground between judicial passivism and overreach, noting that the marginalized and the underprivileged often rely on judicial intervention for justice.
“Too little activism would signify under-enforcement of constitutional notions of good governance, rights and justice. Too much activism results in over-enforcement of these ideals. Judicial activism and judicial restraint are two sides of the same coin,”
he observed, underscoring the fine line between beneficial intervention and excessive judicial intrusion.
The Judiciary’s Responsibility to the Marginalized
For vulnerable sections of society, the judiciary often serves as the final recourse for justice. Luthra pointed out that a more activist judiciary can ensure that the voices of the deprived and marginalized are heard, reinforcing the judiciary’s duty to uphold justice and fairness.
The remarks by Luthra, emphasizing both reform in judicial appointments and the delicate interplay of judicial activism and restraint, resonated with the audience. His reflections on Jaitley’s vision and the limitations of the collegium system provide a timely perspective on the challenges facing India’s judiciary. With his address, Luthra has underscored a crucial dialogue on how India’s judiciary can evolve to better protect the constitution and deliver justice equitably, even as it navigates the intricate balance of activism and restraint.
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