Resolution on the horizon
Earlier this month, five new judges appointed to the Supreme Court took their oath of office, bringing the total strength of the apex court to 28—three short of its sanctioned strength of 31. Reports indicate that the Supreme Court Collegium is in the final stages of deliberating on the long-pending Memorandum of Procedure (MoP) for the appointment of judges and relevant clauses in the government's draft which once created an impasse between the highest judiciary and the executive. The elevation of JS Kehar to the office of Chief Justice has indeed hastened the process. In his tenure, Chief Justice Kehar has repeatedly assured the government that he would have the MoP finalised soon, possibly by the end of this month or early next month.
A controversial clause in the government's draft 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 is reportedly no longer a bone of contention. One hopes that the court has not acceded to the government without any amendments to that clause. Last year, the Parliamentary Standing Committee on law and justice panel noted that the provisions for national security and public interest might allow the government to assume "veto power" and reject any candidate recommended by the apex court collegium.
"The Committee apprehends that the government may reject any name duly approved by the Supreme Court collegium under the veil of those parameters. This would tantamount to giving veto power to the government, which is not the mandate of the Constitution," stated the 87th report of the parliamentary standing committee that was examining reasons for the delay in judges' appointments. Clauses like "national security" and "larger public interests" should be defined in explicit terms, along with listing conditions and circumstances that would come within their purview. This veil of ambiguity will indeed leave too much power in the hands of the executive. Appointing judges is the shared responsibility of the executive and the judiciary. A final resolution could bring greater transparency.