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End the impasse

In response to repeated salvos from Chief Justice TS Thakur over the delay in judges’ appointments, the Centre last week said it was not responsible for stalling them. For the past few months, the CJI 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. Both the judiciary and the executive are yet to agree on a fresh Memorandum of Procedure for appointments to the superior courts. More than the shortage of judges, it is the inordinate delay in reforming the collegium system that will harm the institution’s image. The Centre, which has been tasked to draft the MoP, is awaiting the approval of the CJI and his fellow judges for its proposals. 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 further. 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. 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. Moreover, appointments to institutions like the Election Commission, the Comptroller and Auditor General of India, and the Reserve Bank of India are made by elected governments. Today, one would find it hard to argue against the integrity of such institutions, despite occasional concerns. To the uninitiated, the NJAC Bill was meant to replace the collegium system of appointments.

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 to include “merit and integrity” as “prime criteria” for the appointment of judges to the higher judiciary, although seniority still holds primacy. Other recommendations include 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 contentions, both sides must end the impasses as soon as possible. The impression is that the executive wants to dilute judicial primacy in appointments and the other wants to delay or prevent any infusion of transparency. The reputations of both branches of government are at stake here.
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