Govt must end stalemate with judiciary

The tug-of-war between the government and the judiciary continues unabated as the Memorandum of Procedure for appointment of judges to the high courts and the Supreme Court has not been finalised so far.

It has been over two years since the Constitution Bench of the Supreme Court nullified the amendments made to allow the executive to have a say in the appointment of judges and directed the formulation of a fresh Memorandum of Procedure.

Smarting under the setback, the government insisted on including the ‘national security’ clause, widening the zone of consultation and a complaint disposal mechanism, among others, in the draft. Although the government maintained that it is committed to the independence of the judiciary, the political executive continues to demand a say in the appointment of judges.

One cannot forget the public expression of despair and reprimand by the former CJI, Justice T S Thakur who,on more than one occasion, threatened to issue judicial directions to the government to notify the names recommended for appointment as HC judges. The government first stalled, then cleared only some names, and continues to sit on other names, even as a huge number of vacancies plague the various high courts. Several of them are managing with less than half their sanctioned strength.

To be sure, the appointment of judges has not been stuck due to the lack of the fresh MoP because the judiciary and the executive have agreed that these could go through on the basis of the previous guiding document. Rather appointments have been selectively stalled due to extraneous contentions. But as the vacancies mount in high courts across the country – out of a sanctioned strength of 1079 judges in 24 high courts, the working number as on October 1 was 692 -- it ishigh time both sides put to rest all contentious issues and arrived at a consensus on the MoPso as to leave no room for subjectivity.

The Constitution Bench, then headed by Justice J S Khehar, had given the government the task to supplement the previous MoP with a fresh one in consultation with the CJI. The government, for its part, had maintained that the formulation of the MoP was an administrative responsibility,and fell in its domain. It also contended that the court neither had the expertise nor the wherewithal to propose amendments to the existing MoP to improve the Collegium system.

Expressing its “complete agreement” with the government, the apex court had on December 16, 2015, asked the CJI to take the unanimous view of the Collegium in finalising the MoP. The factors that were flagged for consideration included eligibility criteria, transparency in the appointment process, and a complaint redressal mechanism against the judges.

The repeated attempts by the government to settle the issue under two previous CJIs – Justices T S Thakur and J S Khehar-- failed. The clauses on national security and widening the zone of consultation in the selection of judges have received a categorical ‘no’ from the judiciary. The government wanted to include judges other than those in the Collegium, chief ministers, advocate generals and the Attorney General of India in the proposed widened zone of consultation.

It also wanted an appraisal committee, comprising retired or serving judges, jurists and academicians to vet the names. For appointment as SC judges, the government favoured bringing in geographical representation, SC/ST and women’s representation and a merit-over-seniority system for the candidates.

But the Collegium was of the unanimous view that the authority to name candidates should remain with it only. The views of chief ministers, senior advocates of high courts concerned are taken into consideration in any case while selecting judges.

On Friday, in a first, the Supreme Court took a salutary step to put up on its website the minutes of the Collegium’s meetings to usher in transparency in the appointment process. With this, the Constitution Bench’s desire that the MoP would provide for an appropriate procedure for minuting the discussions, including recording the dissenting opinion of the judges in the Collegium, has been somewhat achieved. However, establishing a proper secretariat in each high court and the Supreme Court to ensure better management of the system of appointment of judges is yet to see the light of day. Likewise, the complaint redressal mechanism against judges is still to be put in place.

With the Collegium having sent back its views on the new MoP, it is now for the government to end the stalemate, without tinkering with the independence of the judiciary. Any further delay will not be in the public interest.