Resolution or surrender?

Earlier this week, there were reports that the Supreme Court collegium has finalised the memorandum of procedure (MoP) for the appointment of judges to the higher judiciary, overcoming serious differences with the Centre and within itself. This is a positive development, although there are some definite concerns. Long overdue, the apparent completion of the MoP paves the way for filling up pending vacancies in high courts. The former Chief Justice of India TS Thakur had often clashed with the Modi government on the subject. The elevation of JS Kehar to the office of Chief Justice has reportedly hastened the process. In its assessment late last year, the Parliamentary Standing Committee on law and justice had slammed both the executive and judiciary for delays in appointing judges. Among the key recommendations made in the new 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 about appointments and complaints against the same and the selection of three distinguished lawyers and jurists as apex court judges. The government also proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections. It argues that such a process would ensure transparency. There are many other provisions. But there is one that may have a direct bearing on the independence of the judiciary.

Reports state the collegium headed by Chief Justice JS Khehar has agreed to the 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". The collegium during former Chief Justice T.S. Thakur had said that the term "national security" is vague and inclusive and needs to be narrowly defined. There is no real objection to the idea that future judges should not present risks to national security, but in the words of former United States Supreme Court Judge Antonin Scalia, 'national security' is a 'boundless and boundlessly manipulable' term. 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 be 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. The current collegium has seemingly understood that as a potential risk. In fact, the collegium reportedly intends to retain the authority to reject the Government's decision and reinstate a recommendation. Until an official declaration of a new MoP, one isn't sure whether the collegium has dropped this demand too. The collegium apparently conceded to the national security clause "on the condition that specific reasons for application of the clause were recorded," according to a Times of India report. With the Centre firm on its position and the judiciary suffering serious harm to its institutional image as a result of this long-standing deadlock, one would presume that the collegium had little option but to concede. One perspective is that at least the judiciary is being given reasons whenever a rejection takes place for national security. It is better than nothing.

If the collegium has indeed dropped its demand to retain the authority to reject the Government's decision, the government's "veto power", which the parliamentary committee had warned against, may still stand. Judges with more liberal views could be subject to that potential veto and denied promotion. For instance, the temptation exists to reject a judge taking an aggressive position against the government over gross human rights abuses under the Armed Forces (Special Powers) Act. "For any judges wanting to ascend the career ladder of the judiciary, the national security proviso could end up being a real and lingering concern in the backs of their heads, and that could have a lasting impact on the direction future jurisprudence will take when keeping in check the power of the state," says a recent editorial in Legally India, a news and community portal for Indian lawyers. Theoretically, one must understand the famous British philosopher Jeremy Bentham's hypothetical prison surveillance system, which was called the 'panopticon', to fathom the implications of such government power. In this prison system, there is a cylindrically shaped room that holds the prison cells on the outside walls. At the centre of the structure, a light tower is to be constructed, which will disperse light into all the prison cells. Hence, the prisoners will be under the feeling that they are constantly being watched by the correctional officers even though that isn't always the case. Accordingly, the prisoner will behave as if he is closely watched all the time even if he isn't. In other words, the temptation for "self-policing" among the judiciary will exist.