This story was originally published by Global Press Journal.

On an unusually warm March evening, fire broke out at Delhi High Court Judge Yashwant Varma’s house. 

Firefighters rushed in. As they walked out, two pulled out their phones to record half-burned wads of cash. News channels broadcast footage of cash strewn around the house, speculating that it was bribe money. The next morning, when police entered the house, the cash was gone. By June, a Supreme Court inquiry committee had found “severe misconduct” and proposed Varma’s impeachment.

Varma’s case has sparked a fresh debate that’s revealed old — and increasingly fractious — fault lines between the executive and judiciary branches, as Prime Minister Narendra Modi’s administration makes efforts to wrest control of judicial appointments.

In the days after the cash came to light, Indian Vice President Jagdeep Dhankhar stood in the Upper House of the Indian Parliament and implied that Varma, a longtime judge, was corrupt — and that it was the judiciary’s fault for having an opaque system for selecting judges. 

On paper, judges are appointed mainly by other senior judges without much interference from other branches of the government. But under Modi, judges have complained that the executive branch twists the rules so that it has the final say. 

In 2014, a law created the National Judicial Appointment Commission to appoint judges to the Supreme and High Courts in such a way that Parliament would have more authority. It was among the first laws Parliament passed after Modi came to power that year, but the Supreme Court struck it down in 2015.

“Giving them such power formally will mean judiciary would be a weak check on the actions of the executive,” says a former senior Delhi High Court judge who requested anonymity as he fears repercussions.

In the 11 years since Modi came to power, the government has curtailed academic freedom and restricted civil society. In many cases, the media has complied with government demands. In 2021, Freedom House, a United States-based nonprofit, declared that India’s status as a free country had declined to “partly free.”

“Higher courts in India are the last check on the authoritarian tendencies of the government,” the senior judge says. “Therefore, who sits on those benches matters a lot.”

An opaque process

India’s process for judicial appointments to the higher courts is relatively opaque and, critics say, not based on objective criteria.

Five senior Supreme Court judges form a collegium that selects judges. Three-member collegia for the 25 High Courts across the country submit names to the Supreme Court collegium. Their deliberations are not public.

“They give reasons for why a person was selected but don’t say why another was not,” says Ratna Appnender, a Delhi-based lawyer and legal researcher. “There is no clarity for the basis for selection.”

The Supreme Court collegium sends its recommendations to the law minister. If the minister has reservations, he asks the collegium to reconsider. The minister has no official veto power. But in practice, he exercises a de facto veto, “giving the executive a crucial role in the selection and appointment process,” according to a January report by the International Commission of Jurists.

‘The system is broken’

Critics of the executive’s role point to the case of senior advocate and constitutional expert Saurabh Kirpal, whom a collegium recommended for a judgeship in the Delhi High Court in 2017.

Kirpal, an openly gay lawyer, was part of the legal team that successfully fought to decriminalise homosexuality in India. He would have been the first openly gay High Court judge in India.

But the law minister sent Kirpal’s name back to the collegium, saying that Kirpal’s partner would constitute a security threat because he is a Swiss national. (At least three senior judges have had foreign spouses.) The collegium recommended Kirpal again in 2018, then twice more in 2019.

In early 2023, for the first time, the Supreme Court made public the discussions over Kirpal’s potential nomination with the executive branch. The details revealed that the law minister admitted in a letter that Kirpal’s sexuality was the issue. Kirpal is still not a judge.

“In a mature democracy,” Kirpal says, “when there is a systemic imbalance when it comes to representation of the marginalised, it means the system is broken.”

The way forward

Giving Parliament more power over judicial appointments would be tantamount to skewing court decisions in its favor, Kirpal argues. “The biggest litigant in this country is the government of India — and that would be choosing who adjudicates cases.”

Kurian Joseph, a Supreme Court judge who retired in 2018, says it’s already happening.

“In practice, the executive has been arm twisting the judiciary and having a final say on the appointments,” he says.

Joseph, one of the four judges who struck down the 2014 law that created the National Judicial Appointment Commission, says the law would have made judges beholden to Parliament.

But a decade later, Joseph says that perhaps the commission would have been preferable.

“At least,” he says, “we would know who to criticise.”

Raksha Kumar is a Shifting Democracies Fellow based in Delhi, India. An award-winning multimedia journalist, she is known for her work on human rights, land and forest rights, and media freedom. She has reported from over 100 districts across India for major publications including The New York Times, BBC, The Guardian, NPR, Foreign Affairs, and The Hindu. Raksha is the recipient of the Chameli Devi Jain Award for Outstanding Media Personality, the British Council Achievers Award, and the UNFPA Laadli Media Award for Gender Sensitivity. A Fulbright Scholar, she holds a master’s degree from Columbia University’s Graduate School of Journalism and a postgraduate diploma in International Human Rights Law from the National Law School of India University.

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