Power struggle

In yet another chapter of the ongoing tussle between the judiciary and the executive, the Supreme Court slammed the Centre over the delay in appointments to the higher judiciary. In response, the Centre said while it's keen to appoint new judges, there is also a need to expedite the Memorandum of Procedure (MoP) pending before the collegium for the past two months. 

Albeit harsh, the court’s assertions against the Centre did hold some weight. It lashed out at the government for sitting over the files of judges’ appointment despite clearance by the collegium nine months ago. Going by the court’s assertions, it seems evident that the Centre is sitting on appointments that could further undermine the already overburdened judicial system. 

In its defence, the Centre, represented by the Attorney General, brought up the MoP, which will guide future appointments after it is finalised by the judiciary and the government. He pointed out that although a year has passed since the October 2015 judgment, the MoP was yet to be finalised. To the uninitiated, in October 2015, the court unilaterally struck down the National Judicial Appointment Commission Act passed by both houses of Parliament. 

The court deemed this argument to be a “red herring”, and clarified that under the new MoP is finalised, appointments will continue based on old guidelines under the collegium system. At one level, the court is right because the Centre had already committed to processing the files for the appointment of judges without finalisation of the MoP. 

But the court’s contention does not capture the entire gamut of institutional concerns regarding the old guidelines. The bottom line is that the previous MoP was not in line with the October 2015 judgement, which favoured the formulation of a new mechanism. The court, however, maintained its line that by delaying appointments, the Centre was undermining an overworked judiciary. The court’s assertion has already been challenged by one of its own. 

Last month, Justice J Chelameswar, a senior judge on the Supreme Court, wrote a letter to Chief Justice Thakur, stating that he will not attend future meetings of the collegium unless there is a “modicum of transparency” in its functioning. More than the lack 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. Appointing judges under the current 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”. 

 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. As per news reports, 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 a recent column co-authored by Ajit Prakash Shah, former Chief Justice of the Delhi High Court. 

It is the people of India, who continue to suffer at the hands of this impasse between the judiciary and the executive. The common man’s only recourse to justice against an overbearing establishment is the legal system. Instead of laying down a system that would enhance transparency, the MoP has become central to a power struggle between the executive and the judiciary. “Judicial appointments have thus become hostage to the fight between the government and the judiciary on who should control appointments” argues Prashant Bhushan, an eminent lawyer.