Facultad de Derecho

Navigating Judicial Crisis in India and Colombia

Medha Srivastava[1]


Introduction and background

An important discussion emerging in legal academia is the focus away from only the Global North to also include Global South scholarship and study: particularly useful for India, where the discussion is, and needs to diversify into studying and understanding countries of the Global South with similar problems. With their rich history, Latin American countries have and will prove to be a fascinating subject of study for India in the area of comparative constitutional law, particularly in the area of constitutional amendments and judicial power and independence. Both India and Colombia have the shared experience of activist Constitutional Courts who have delved into Constitutional interpretation in many cases, but have also gone through- and continue to go through- tumultuous phases relating to how independently they are perceived by the public.


Judicial Appointments in India and concerns of opacity in appointment and independence

The “Collegium” of judges which selects members of India’s higher judiciary (the Supreme Court of India and high courts of the states) does not find place in the plain words of the Constitution, but is a creation of interpretation by the Supreme Court of India[i] As a result of the famous Three Judge´s case the Supreme Court read into the Constitutional provision for appointment of judges in the higher judiciary- and ruled that ‘consulting’ of the Chief Justice by the President in the matter of judicial appointment, would and should amount to concurrence. This meant that ultimately, it is the Chief Justice of India who has the final word on the appointment of judges to the higher judiciary. The Court diverted from a plain reading of the provisions (as in the First Judges’ case) towards reading into the provision and creating the Collegium through constitutional interpretation. This background is also important for understanding the problems and lacuna in the understanding of judicial independence in India.


The new law for appointments contemplated in 2014 called the National Judicial Appointments Commission Act (NJAC), provided for a Commission to select candidates to be appointed as judges to the higher judiciary. This was accompanied by the 99th Amendment to the Indian Constitution. This law, and the Constitutional amendment, were however, challenged in the Supreme Court for being violative of judicial independence and was ultimately struck down by the Supreme Court. There were various viewpoints and arguments against the NJAC, some based on established constitutional jurisprudence and some also relating to practical concerns (such as the veto power given to the ‘eminent persons’ in the Commission the manner of their selection). However, the main concern in the arguments of those opposing it seemed to be that having members of the executive, particularly the Law Minister, would be a threat to the independence of the judiciary in India. While these concerns are and were very understandable, the current appointment system has not eliminated concerns and threats to judicial independence.


The Supreme Court of India delivered a lengthy judgment outlining why the Commission would violate judicial independence, but did not delve deeper into the doctrinal aspects of it. It also drew a hasty conclusion on how the primacy of the Chief Justice on the matter of appointments was essential to judicial independence- and because judicial independence was a part of the Basic Structure of the Constitution, the dilution of this primacy through the Commission would violate the Basic Structure of the Indian Constitution.[ii]


While judicial independence is undoubtedly an essential part of the Basic Structure of the Constitution, it is debatable whether the only way to protect and preserve the ideal of judicial independence is an isolated system of appointments. Therefore, an important academic conversation to be had is also how the application of the Basic Structure theory to the cases has led to a problematic, isolated judicial appointment system in India- which is lacking in diversity and fails to be representative of the population. The Collegium has often been criticised for increasing opacity and nepotism in the Indian higher judiciary. Further, the judiciary is insulated from other state organs in a way that often shields it from any checks and balances. The appointments in India are often criticised for being politically influenced, and judges are often scared to cross an invisible line while dealing with cases where the government is a litigant, as they are met with unfavourable and almost punitive transfers, and in some (though rare) cases, suspension of work. The issues with judicial appointments in India is, in fact, also the result of a long-standing struggle for power between the Executive Government and the Judiciary in India, which went through another tumultuous period (before now) under the rule of Ms. Indira Gandhi.


The Colombian Constitutional Court and Judicial Independence

Several countries over the world struggle with judicial independence issues similar to India, where Constitutional courts’ nexus with politics lead to ineffective check on arbitrary state action. Both the Indian and Colombian Constitutional Court are known for their expanded powers of interpretation and standing, when it comes to rights’ adjudication before the court. In Colombia, for instance, tutela was incorporated following cue from other Latin American countries such as Mexico, which gave the Court significant powers of interpretation as well as independence. In India, the concept of Public Interest Litigation has broadened the scope of standing before the Supreme Court, allowing a citizen to file a litigation in the Supreme Court of India, under specific provisions, which has been a significant, if criticised, development for rights’ jurisprudence in India.


The judicialization of politics in Colombia has also been the subject of study and critique by constitutional law scholars- another important element that makes it an interesting study for Indian Constitutional Law scholars. Several incidents in the past have reflected the power and independence of the Colombian Constitutional Court, such as its decision in the Presidential re-election cases as well as its rights’ jurisprudence relating to protecting the rights of minority communities, such as the gay community.[iii] Further, in 2016, the Court delivered a landmark decision[iv] by striking down judicial reforms proposed by the Government which sought to re-define the separation of powers and create a Judicial Governance Council which along with the Management Office of the Judicial Branch, which would replace the existing “Administrative Chamber of the Superior Council of the Judiciary” and give the government greater control over the administration of the judiciary.[v] In addition, the Court also struck down the Commission of Aforados[vi] which would be in charge of disciplinary and criminal proceedings against judges on the higher courts, and other important posts as the General Attorney. These new structures were proposed by the Colombian government in order to increase transparency in the judiciary, however these moves of the government were also criticised as efforts to control the judiciary and compromise its independence. While some scholars applauded the Court for its activist approach and broad interpretation powers, there was equal concern that no Constitutional amendment relating to the structure or powers of the judiciary would survive.[vii] This is an interesting line of inquiry for India as well. More recently in 2020, the Colombian Supreme Court ordered the house arrest of former President Álvaro Uribe one of Colombia’s most powerful politicians, who has allegedly sought to intimidate the media and judiciary in Colombia. This was lauded as a powerful move by the judiciary against anti-democratic elements, with scholars and activists also saying that this displayed that the politicians’ attempts to take over the courts had failed.[viii]


India and Colombia both find themselves in situations where the judiciary faces crisis both within and outside it. On the one hand, both jurisdictions are no strangers to a “judicial crisis” where public faith in the judiciary is reducing, and there is much academic and scholarly critique of the courts’ independence. On the other hand, political turmoil at different periods of time have shown that the judiciary faces attacks on its independence from outside as well, particularly when governments try and take control of the judicial branch of the state.


The way forward

As mentioned before, there are limits of the Basic Structure Theory in India which also led to problematic interpretations for the jurisprudence on judicial appointments. This issue also finds place in the work of Landau and Dixon[ix], who in their writing on unconstitutional constitutional amendments[x], state that the doctrine of ‘unconstitutional constitutional amendment’ is a partial solution to abusive constitutionalism at best. In their work, they incorporate the cases of India and Colombia comparatively, drawing parallels between the Emergency Period in India and the Presidential re-election cases in Colombia. Dixon and Landau refer to abusive constitutionalism as the arbitrary use of power by the executive government, and explore the courts’ role in checking this power. The gap is filled, according to them, by transnational constitutionalism- which, however, may be a slippery slope, as every jurisdiction has a specific context that cannot be overlooked or homogenised for the sake of finding a constitutional solution to arbitrary exercise of power.


These issues are not unique to India or Colombia: since 2012 Hungary and Poland have been dealing with several complex issues as they sought to establish judicial reforms- which have been criticised by the EU as well. Non-governmental organisations and actors have also explored these reforms in detail and concluded that this did not bode well for the organisational independence of the judiciary. There were several ways in which the judiciary was attacked, such as the classic approach of populating the bench with favourable judges as well as unfavourable consequences for judges that overstepped the government line. In this case, the EU had issued sanction to the respective countries, to no viable end as of now.


The reliance on the Basic Structure theory was perhaps the Indian Supreme Court’s way of cutting short it’s arguments against a Commission-style system of appointing judges. If one is to play the Devil’s Advocate, the Indian scenario is unique, and there are several arguments in favour of avoiding executive presences in the judicial appointments systems. However, if the NJAC was an attempt to preserve judicial independence, why does judicial independence hang by a delicate thread in India, often even criticised for being erased?  Is it because unlike in the EU, there is no body to independently evaluate the actions of the Supreme Court, or rather its inactions in the face of problematic government policies? The cure is not a knee-jerk change to a commission, which will magically cure the problems of nepotism and lack of diversity on the bench. However, a more constructive dialogue is to be had, in academic, political and policy contexts. This is the only way forward towards a more transparent judiciary and therefore rule of law in India.




[1] Medha Srivastava is a PhD candidate and researcher at the Humboldt University of Berlin, awarded the GSSP-DAAD Scholarship in collaboration with the European Law School for doctoral studies. Previous to her PhD, Medha has worked in the area of judicial reforms at a Public Policy and Legal Think-tank at New Delhi. She has also worked as an Advocate in the Supreme Court of India after graduating the Bachelor of Civil Law from the University of Oxford in 2014.

[i] See Supreme Court Advocates-on-Record Association vs. Union of India (1993), the decision of the Supreme Court of India which established the “Collegium” system of appointments, as it exists today. It is also referred to as The “Second Judges’ case”. Available at <https://indiankanoon.org/doc/753224/>, accessed 14.12.2020.

[ii] Rehan Abeyratne (2017), ‘Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective’ The Geo. Wash. Int’l L. Rev Vol. 49, pp. 578. 579. Available at <https://www.gwilr.org/wordpress/wp-content/uploads/2017/05/ILR-Vol-49.3_Rehan-Abeyratne.pdf> accessed 30.11.2020.

[iii] See Rodrigo Uprimny Yepes, ‘Judicialization Of Politics In Colombia: cases, merits and risks’ <https://sur.conectas.org/en/judicialization-politics-colombia/> accessed 30.11.2020. The Colombian Courts have delivered several decisions which prohibit the denial of jobs and other rights to homosexuals. While the Court has been critiqued for not showing an equally activist approach in the area of marriage/partnership in the case of homosexual couples, this is an important step towards destigmatising the members of the community. In India, homosexuality was decriminalised only in 2017, after many tireless efforts of the LGBTQ+ community. However, there have since been scattered and lacklustre developments, if at all, in the jurisprudence- despite continued activism of the community.

[iv] Decision C-285 of June 1, 2016.

[v] Mario Cajas Sarria, The Unconstitutional Constitutional Amendment Doctrine and the Reform of the Judiciary in Colombia, Int’l J. Const. L. Blog, Sept. 1, 2016, at: <http://www.iconnectblog.com/2016/09/the-unconstitutional-constitutional-amendment-doctrine-and-the-reform-of-the-judiciary-in-colombia/> accessed 30.11.2020.

[vi] Decision C-373 of July 13, 2016.

[vii] Mario Cajas Sarria, The Unconstitutional Constitutional Amendment Doctrine and the Reform of the Judiciary in Colombia, Int’l J. Const. L. Blog, Sept. 1, 2016, at: <http://www.iconnectblog.com/2016/09/the-unconstitutional-constitutional-amendment-doctrine-and-the-reform-of-the-judiciary-in-colombia/> accessed 30.11.2020.

[viii] José Miguel Vivanco, ‘Those Who Value the Rule of Law Should Back Supreme Court’s Independence in Colombia’ (Human Rights Watch, August 2020) <https://www.hrw.org/news/2020/08/10/those-who-value-rule-law-should-back-supreme-courts-independence-colombia> accessed 30.11.2020.

[ix] Rosalind Dixon, David Landau (2015), ‘Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment’, International Journal of Constitutional Law, Volume 13 (3) pp 606–638. Available at <https://academic.oup.com/icon/article/13/3/606/2450805> accessed 30.11.2020.

[x] See also on unconstitutional constitutional amendments: Yaniv Roznai, ‘Unconstitutional Constitutional Change by Courts’ New England Law Review Vol. 51(3) p. 555. Available at <http://portal.idc.ac.il/FacultyPublication.Publication?FacultyUserName=eXJvem5haQ%3D%3D&PublicationID=5776> accessed 30.11.2020.