Equally culpable

Among the key recommendations made in the new Memorandum of Procedure (MoP) for judicial appointments, the government proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections. The government argues that such a process would ensure transparency. For promotion to the chief justice of a high court, the new 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. “As far as a national security veto is concerned, the judges are rightly concerned about national security (or national interest) becoming a fig leaf for state unaccountability, a blunt instrument used to end all requirement for further explanation,” said Ajit Prakash Shah, former Chief Justice of the Delhi High Court. However, Minister of State for Law and Justice, PP Choudhary, was emphatic in his assertion that if an appointment “goes against national security or overrides public interest”, then the government should be in a position to disregard it. 

The Parliamentary Standing Committee on law and justice, chaired by senior Congress leader Anand Sharma, agrees with Shah’s contention. In its report last week, the 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. These observations are in concurrence with the views of the current apex court collegium, which has rejected the government’s proposal to empower it to dismiss any recommendation on these grounds. 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.  

Initially, the power of appointing judges was vested in the government, which was only required to consult with the Chief Justice of India on the appointment of judges to the higher judiciary. Before the onset of a Collegium system in 1993, “politically committed” judges or those beholden to the ruling establishment were appointed, undermining the judiciary’s independence. Although the Collegium system, established by the Second Judges case, did bring greater independence to the judiciary, the appointments made through it were non-transparent, and often riddled with allegations of nepotism. 

The system of checks and balances plays a critical 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 National Judicial Appointments Commission 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. 

Every democracy does need an independent judiciary. However, the strength of every institution is not merely based on the strength of its people, but the rules and principles that govern its daily functioning. Unlike the Collegium, the government is accountable to the people of India. Appointing judges is the shared responsibility of the executive and the judiciary. Both the institutions must resolve their differences quickly in public interest and finalise the MoP.

As far as delays in appointments are concerned, something which Chief Justice TS Thakur has complained of often, the panel has rightly slammed both the executive and judiciary. Data collated from the Department of Justice states that in certain cases, the executive took 11 months to forward the names of candidates to the collegium, the panel noted. For the 500 vacancies that have piled up in the high courts, the government should be blamed for dragging its feet. But even the judiciary hasn’t covered itself in glory. There are seven vacancies that have accrued in the Supreme Court (almost a quarter of the Supreme Court’s sanctioned strength), and the Collegium is yet to recommend names, despite five meetings in the last two months. What’s worse, the in-house judicial appointments body did not observe the basic protocol of maintaining the minutes of the proceedings, raising disturbing questions about the lack of transparency. 

In fact, three months ago, one of its members, Justice J Chelameswar announced his decision to boycott the meetings because of the collegium’s inability even to establish a basic modicum of transparency in its dealings. Had the chief justice taken the necessary step to address it, such a scenario may not have come to pass. Meanwhile, the parliamentary panel has also sought to set up a dedicated Cell in the court registry. Another means to repair the vacancy situation is to establish a fixed minimum tenure for chief justices both in the Supreme Court and various high courts. When judges retire or are elevated to the highest court, the entire process of filling up vacancies in several instances falls apart.