There is dissension within the ranks. Last Thursday, Justice J Chelameswar, a senior judge in the Supreme Court, wrote a letter to Chief Justice TS Thakur, stating that he will not attend future meetings of the collegium unless there is a “modicum of transparency” in its functioning. Without a resolution, the issue would hold up appointments to the Supreme Court and transfers across various high courts as Justice Chelameswar is part of the five-member collegium that controls these procedures. Such dissension comes in the wake of a raging dispute between the judiciary and the executive (Modi government) over the Memorandum of Procedure for the appointment of judges after the apex court unilaterally struck down the National Judicial Appointments Commission Act. For the past few months, the Chief Justice has repeatedly expressed his concern over the chronic shortage of judges and questioned the delay on the Centre’s part in filling up vacancies in high courts. But more than the shortage of judges, it is the inordinate delay in reforming the collegium system that will harm the institution’s image. There is a clear link between the delay in filling up judicial vacancies and an agreement on a new MoP. Any appointments made through the existing collegium system at a time when a new procedure for doing so is under active consideration will undermine the institution. There are 475 vacancies in the High Courts, as per recent reports. Appointing these many judges under the existing system, considered opaque and inadequate, would be improper at best. Justice Chelameswar had highlighted this very fact when he drew the CJI's attention to the “futility” in taking part in an exercise which was “non-transparent”. One of the suggestions presented by the senior Apex Court judge is to take down the minutes of all the meetings. This would ensure transparency as all judges would have to present reasons for their decisions to back a certain candidate for elevation. Meanwhile, Chief Justice T S Thakur on Saturday expressed hope that the controversy arising out of the refusal of Justice J Chelameswar to take part in collegium meetings would be sorted out.
To the uninitiated, Justice Chelameswar was the lone judge who favoured eliminating the collegium system in its current form, when a five-member Apex Court Constitution Bench struck down an amendment to recognise the NJAC Act. He had argued that although the final say should lie with the judiciary, it would be unfair to deny the government any say in the process. Although the collegium system has brought greater independence to the Judiciary, the appointments made through it are non-transparent, and often riddled with allegations of favouritism and nepotism. The system of checks and balances plays a vitally important role in ensuring that none of the three branches of government: Executive, Legislative, and Judicial can limit the powers of the others. This way, no one branch can try and become too powerful. Except that, this conceptual clarity has not translated into reality. Moreover, critics argue that recurring activism by the judiciary in matters under the direct jurisdiction of the executive has disturbed the delicate balance of powers enshrined in the Constitution. When the Apex Court struck down the NDA government’s National Judicial Appointments Commission (NJAC) Bill, Union Minister Arun Jaitley argued that while its judgment sought to protect the Judiciary’s independence, it undermined the supremacy of Parliamentary democracy- the most important element of the Basic Structure.
The Centre believes that its draft MoP will enhance transparency and quash perceptions of favouritism and nepotism in making judicial appointments and transfers. Among the key recommendations made in the MoP, the Centre has sought public documentation of reasons why a senior judge was overlooked for promotion, the establishment of a permanent secretariat to maintain records pertaining to appointments and complaints against the same and the selection of three distinguished lawyers and jurists as apex court judges. There will be a two-fold vetting process – one by the respective High Court appraisal committee and then by the Supreme Court committee. The government argues that such a process would ensure transparency in judicial appointments. For promotion to the Chief Justice of a High Court, the MoP has laid down a mechanism to evaluate judgments delivered by the appointed judge in the last five years and the steps he/she took to improve judicial administration. Reports indicate that the higher judiciary has some reservations about the screening process. One area of real concern is a clause that empowers the executive to reject a collegium's proposal for appointment of a constitutional court judge on the basis of national security or public interest. The Centre is firm on retaining this clause, despite the judiciary’s contentions. Depending on which side of the fence one stands, one can present arguments to support either side. But one has seen in the past how governments misuse provisions under national security and public interest to stifle dissent and divergence in public discourse. Despite these differences, both sides must end the impasses as soon as possible.