Face-Off Judiciary Versus Executive

While the SC rejected the Modi government’s proposed National Judicial Appointments Commission to replace the existing Collegium system for appointment of judges to higher courts, the debate is still far from over...

At last count, there were more than 400 vacancies in high courts across the country against a sanctioned capacity of 1,016, which essentially means they have been functioning at half their strength for the longest time. Not surprisingly, litigants continue to face disappointing delays even as the pendency of cases rises. Notwithstanding, the judiciary and the reigning government continue to be at loggerheads over the issue of appointment of judges to higher courts.

Since 1993, we’ve had the Collegium system where the Chief Justice of India (CJI) and a forum of four senior-most judges of the Supreme Court (SC) recommend all appointments and transfers of judges to the higher judiciary. However, the system has oft come under fire for reasons such as: creating "an empire within an empire" in the SC; creating a "give and take" culture in the SC; and creating a rift between haves and have-nots.

In what has been widely perceived as a move to clip the wings of an overzealous judiciary, the Narendra Modiled government in 2014 passed the 99th Constitutional Amendment Act, 2014, and National Judicial Appointments Commission (NJAC) Act, 2014; both of which came into force April 13, 2015 onward. The idea was to establish the NJAC, a constitutional body proposed to replace the Collegium system of appointment of judges to higher courts.

As opposed to the Collegium system, the NJAC would comprise six people, including the CJI, two seniormost judges of the SC, and two "eminent persons" to be nominated for a three-year term by a committee constituted by the CJI, Prime Minister (PM), and leader of opposition in the LokSabha. The CJI and two senior-most judges of the SC would be able to irreversibly veto any name proposed for appointment to a judicial position if they did not approve of it. At the same time, the trio would require the support of other members of the commission to get a proposed name through.

The NJAC versus Collegium debate saw a highly divided legal fraternity, with some members terming the Collegium system as "unconstitutional and anti-democratic" where judges were appointed through "secret soundings and cronyism" while others claiming that the NJAC was an attempt by the government to "interfere" in the independence of the judiciary.

At the height of this debate, former CJI, Justice V.N. Khare was quoted in a leading daily as saying that there was nothing bad with the Collegium system; rather, it was superior to the NJAC in many ways. He also made it plain that politicians should not have any say in the appointment of judges because usually, the government was the main opponent in people’s cases and this way, there were chances of abuse of executive power.

Others like Advocate K.C. Mittal, former president of the Delhi High Court Bar Association and Ex-Chairman of the Bar Council of Delhi were skeptical. "When the executivecontrolled system failed, the Collegium came in. When the Collegium is now under a shadow, we have jumped to NJAC but where is the guarantee that the new law will not go the same way? Is it humanly possible that six members of a supreme body will have first-hand knowledge of each and every candidate? They will ultimately depend either on hearsay or some source of their own. This again will be unscientific, irrational, unpractical and unworkable," Advocate Mittal was reported to have told a leading website.

Finally, the SC struck down both the 99th Constitutional Amendment Act, 2014, and NJAC Act, 2014, reasoning that the government’s involvement in appointment of judges to the higher judiciary posed a threat to the independence of judiciary. The apex court did however agree to the Centre framing a Memorandum of Procedure (MoP), in consultation with the SC Collegium, for selection of judges to higher courts.

Accordingly, in March 2016, Law Minister D.V. Sadananda Gowda sent a draft MoP to the CJI-helmed Collegium, which objected to several clauses. Thus, the MoP was sent back to the law ministry in the first week of May 2016, with changes suggested in certain clauses. The government accepted some changes, rejected others, and resent the MoP to the Collegium, which once again rejected several proposals. With the stage set for a major impasse between the government and the judiciary, the former sought the opinion of Attorney General Mukul Rohatgi to try and break the gridlock between the two. The latest is that while the Modi government awaits Rohatgi’s opinion, it is likely to maintain some of the key provisions of the revised MoP. As to who, if at all, will blink first, only time will tell!

Revised Mop: Differences Between Judiciary And Executive

According to the government, primacy of the CJI’s opinion in appointment of judges to the higher judiciary means no appointment be made without approval of the Collegium he heads. At the same time, the government insists that the converse is also true i.e. the government has powers not to appoint a person as judge if it has strong reservations against that person. This thinking in the higher echelons of government is at the heart of the tussle between the executive and judiciary over the Memorandum of Procedure (MoP) for appointment of judges.

The revised MoP has seen conflicting opinions from the government and judiciary. The SC Collegium has told the government that the latter may convey reasons for any objection to a Collegium recommendation but if the Collegium still insists on the recommendation, the same be binding on the government.

Senior government sources revealed to a leading financial daily that the government had no issues noting down reasons, including the material available, and placing it in a file, but felt that the last word on the matter should be that of the President of India. As per the Constitution, the President acts on the advice of the Union Council of Ministers.

The government accepts that no person not recommended by the judiciary can be appointed judge but contends that the interpretation that the government cannot reject an inappropriate proposal is not true and cannot be accepted. The government is of the view that the argument that the executive has no role to play in appointment of judges to the higher judiciary is incorrect.

Also according to the government, there should be wider consultation to select best candidates. It has cited Article 124(2) of the Constitution of India to reinforce its point that there is a power with the President – in effect, the government – to consult other judges of the SC beside the Collegium if it finds a recommendation not acceptable to it.

The power of the President is an additional power always available to the GoI. In that light, the government thinks that while rejecting candidature on grounds of national security or public interest, it can send the file also to other judges of the SC outside the Collegium for wider consultation. According to a government source, this is to widen the scope of the appointment process and usher in transparency.

The government also feels that view of each member of the SC Collegium on a recommendation be made known to it, with detailed reasons in writing and the same be recorded in the file of the candidature. Merely recording a finding like the person has outstanding merit or that a person is unsuitable and hence not recommended, would not suffice, a source aware of the government thinking said.

Meanwhile, the SC Collegium maintains that recording reasons for overlooking a Chief Justice of a HC or a senior judge will be counter-productive as it may mar prospects of his elevation to the SC at a future point and may become a permanent blot on his career.

According to a government source, it is a basic principle that for selecting someone or superseding a judge, reasons must be recorded on file. It is on this line that the government has proposed a committee to screen all names of possible candidates to the SC Collegium, contending that it may not be possible for the Collegium to screen all candidates. Whereas, SC insists this committee is not necessary.

Disclaimer – Statements and opinions expressed in this article are those of the Author and are well researched from various sources. The content in the article is purely informative.