- Opinion - P. Chidambaram

- The move to hand over the power to appoint judges to the Prime Minister will prove dangerous

- Laws regarding racial discrimination were subject to strict scrutiny

- The five judges in the collegium have their own mindsets and preferences

Harvard College, founded in 1636, is the foundational component of Harvard University. Over the last four centuries, new schools and colleges have been added, but Harvard College has held its place. In 2022, out of 60,000 applications, less than 2,000 students were admitted to this college. Getting into Harvard is not an easy matter. Admission to Harvard depends on good grades, letters of recommendation, and how you overcome adversity. Your character also works.

Earlier, there was competition between white Americans and black Americans. In the class of 750 students when I enrolled at Harvard Business School, there were a handful of black Americans, a few Asians (including four of Indian descent), and a few Africans. But there has been a drastic change in America. There is now competition for admission between whites, blacks, Hispanics, Asians, Africans and Middle Eastern students. Harvard College was recently sued by some students for equality in admissions. Another case was against the University of North Carolina.

Equality versus adversity

The main issue in both these cases was whether description can be considered as a standard for college admission. This issue has been haunting America ever since it gained independence from Britain on July 4, 1776. Due to this issue there was even a civil movement in 1861-1865.

The issue of the constitutional guarantee of equality against race has occupied the US Supreme Court since 1896. This issue was put to the test during the 14th Amendment to the US Constitution. The 14th Amendment states, "No state shall make any law which shall abridge the privileges of citizens of the United States, or which shall deprive any person in any state of life, liberty, or property, without due process of justice, nor the equal protection of the laws." This fundamental right is enshrined almost verbatim in Articles 14 and 21 of the Constitution of India.

The Fourteenth Amendment refers to the history and origins of race between white and black Americans. In 1896, the US Supreme Court declared the theory of 'separate but equal'. In 1954, the theory was reversed in the case of Brown v. Board of Education, stating that 'segregation cannot have equality.' Laws regarding racial discrimination were subject to strict scrutiny and were applied only when it came to protecting government interests, and the use of race was made very limited. Later—in Regents of the University of California v. Becke (1978) and Grutter v. Bollinger (2003)—the Court held that diversity in the student body was a compelling state interest that could justify the use of narratives in university admissions. The court also stayed the decision of the universities in the selection of students.

Twenty years later, this decision was about to be reversed. The situation here is that the change in law was not at the behest of white Americans but at the behest of a student body that claimed to represent other minorities, particularly Asian-Americans.

Republicans versus Democrats

The Harvard and UNC cases were disposed of by a majority of 6 to 3. He was nicknamed as conservative and liberal. Six conservative justices were appointed by Republican presidents while three liberal justices were appointed by Democratic presidents. The verdict was ostensibly between conservatives and liberals, but in fact it was between Republican-appointed judges and Democrat-appointed judges.

With the same majority of 6:3, in the case of Planned Parenthood v. Casey, the Supreme Court of America overturned the decision of the case of Roy v. Wade (1973), which declared the right of a woman to abort her child.

The verdicts in the Harvard and UNC cases are illustrative of the dangers of giving political leaders the power to choose judges. A president whose party controls the Senate can appoint any judge who shares the ideologies of the president of the dominant political party. So here is a big question of fundamental constitutional norms, the history and morality of the Constitution, the views and wishes of the public.

The mindset of judges

India also has something to learn from this. The move to hand over the power of appointment of Supreme Court and High Court judges to the Executive (Prime Minister) as before Collegium would prove to be dangerous in a highly polarized country like India. It is also unacceptable to hand over absolute power in the hands of the collegium because the five judges in the collegium have their own mindsets and preferences. An unqualified judge may be appointed to a high position in the judiciary sometimes but there are many cases where genuinely qualified judges have been ignored or the recommendation made by the collegium has not been accepted by the government or unnecessary relaxation has been given. Equality is the desired standard, adversity is a harsh reality and diversity is a felt need. To balance these three it is necessary to have a mechanism for appointing judges who can remain faithful to the basic principles of the Constitution.