Reimagining judicial appointments: Why India needs a Judicial Council

In the scheme of a constitutional democracy, Judiciary is envisioned as a watchdog entrusted with ensuring the observance of rule of law. It embodies the assurance that when the State recedes into arbitrariness or slips towards authoritarian excess, it shall be there to correct them; to proclaim that the aeon of ‘Lex, Rex’ shall remain steadfast. The judiciary is, thus, the final hope on which the superstructure of rule of law rests. It is normatively expected to be independent and impartial, consistent and predictable, disciplined in its institutional functioning and in its constitutional oversight. Any substantial departure from these behavioral expectations, and the hope starts to fade; the superstructure of rule of law begins to shake.

The erosion of constitutional hope

When Umar Khalid remarks, "now this is my life," upon the rejection of bail after more than five years of incarceration pending trial in the 2020 Delhi riots case, contrary to established bail jurisprudence, it reflects precisely that fading of constitutional hope. Among the vast amount of literature critiquing this order, there is one simple question that stares us in the face. Do speeches opposing certain legislation of the government and exhorting chakka jam as a form of resistance really constitute a 'terrorist act'? Would such a conclusion not overturn entire criminal jurisprudence on its head? Let this be briefly elucidated.

If such reasoning were to be taken to its logical conclusion, would it not necessitate reconfiguring the contours of criminal law so that any conduct more serious than a chakka jam, or than an even broader swathe of 'any other means,' could fall within the ambit of terrorism? Such an interpretive trajectory risks expanding the definition of terrorism far beyond its doctrinal purpose, thereby approximating a legal regime akin to a police state rather than principled constitutional governance.

Similarly, when the accused persons in the Bhima Koregaon case are denied bail for prolonged periods on what have been credibly alleged to be fabricated or highly questionable charges, is it not precisely these cases where the judiciary has to be particularly vigilant against State arbitrariness and executive excess? In the present instance, there was no allegation of an overt act committed by the accused, no demonstrated resort to violence, and the ensuing disturbance itself was of a nature and scale far removed from anything that could credibly be said to threaten the unity, integrity, security, or sovereignty of the nation. Let alone the learned courts of justice, could any reasonable person plausibly infer such an existential national threat from the facts at hand?

One may reach this conclusion if the violence of such scale and nature were to occur in a small or micro state such as the Vatican City or a similarly sized polity, but India is a vast and complex nation of nearly 1.5 billion people, with robust institutional capacities and among the world's strongest armed and paramilitary establishments. To characterise relatively contained incidents of violence or unrest as threats to national unity or sovereignty in such a context arguably stretches the doctrinal and constitutional meaning of national security beyond limits that belies any semblance of logic.