A judiciary-govt confrontation must be avoided

The latest decision of the central government on the recommendations of the Supreme Court collegium for appointment of judges in High Courts and the court’s response to some combative and unnecessary comments made by Union Law Minister Kiren Rijiju point to not just a difference of opinion between the court and the government on the matter of judicial appointments, they may also be signs of a growing unseemly confrontation between the two. The government has returned 19 of the 21 recommendations made by the collegium, including 10 names that the government had kept pending even after they were reiterated by the collegium. While the government can return names the first time, it has no choice but to accept the reiterated names. By delaying, even obstructing, the appointments, the government seems to be itching for a face-off with the court. Such a confrontation could have dire and unexpected consequences.

While the Memorandum of Procedure (MoP) in the existing system of appointments says that the Law Minister should put up the reiterated recommendations, preferably within three weeks, to the Prime Minister who would then advise the President on the appointments, the government’s refusal to make the appointments amounts to non-compliance with the law laid down by the court, and a defiance of the court as such. It amounts to violation of the law of the land, which the government is bound to respect and uphold. The government may have a difference of opinion with the Supreme Court on the method of appointment of judges or over the names proposed by the collegium, but it has to abide by the existing system and accept the recommendations.

As per Article 124 (2) of the Constitution, the President appoints the judges after consulting the Chief Justice of India (CJI). The power of recommendation had rested with the executive in the initial years after Independence. However, the Supreme Court, in the Second Judges Case in 1993, set up the mechanism of the collegium consisting of the CJI and two senior-most judges of the court to recommend names, and made it the law. The executive tried to get its place back in judges’ appointments with the National Judicial Appointments Commission (NJAC), which was passed by parliament as the mechanism for appointment and transfer of judges through the 99th Constitutional Amendment in 2014. It envisaged that the NJAC, headed by the CJI and comprising two senior-most judges of the court, the Union Law Minister, and two eminent persons, would make the selection. The Supreme Court struck down the NJAC and the Amendment as it saw them as infringing on judicial independence. The government has been unhappy about it ever since.

The collegium system has been criticised not only because it denied the executive any significant role in decision-making but also as being opaque. There are charges of favouritism, lack of diversity, and arbitrariness in the appointments. Though there have been promises to make the process transparent, it has not happened. At the same time, the court, and most recently CJI D Y Chandrachud and former CJI U U Lalit, have strongly defended the collegium system. While all this is true, it is totally wrong to make the existing system dysfunctional, as the government is doing now. Stalling the appointment of judges when there are hundreds of vacancies in the higher judiciary and lakhs of cases are pending in the courts amounts to weakening the institution and denying justice to people who seek it.

Rijiju is firing regular salvos at the system, escalating the matter with each successive comment. He can only be speaking with the full knowledge and consent of the Prime Minister. In his latest comments, he has gone so far as to tell the court, with a ‘take it or leave it’ attitude, to not complain about the government’s inaction on the collegium’s recommendations. He said defiantly: “Never say that the government is sitting on the files. Then, don’t send the files to the government, you appoint yourself, you run the show.” The court’s response to Rijiju has been mature and restrained. Justice S K Kaul said, “It came from somebody high. Should not have. All I can say is, it should not have happened.” The bench also reminded the government that “maybe you have reservations on the law…But till the law stands, it is the law of the land” and said that it “should look at the larger picture.”

Justice Kaul also said: “If the government says it will delay or not adhere to the law of the land, tomorrow somebody else may say something like this about another portion of the law.” Not just somebody else, even the government can reject a verdict of the court which it does not like if it can get away with its present non-compliance of the court’s procedure, which amounts to disobedience. It would undermine the authority of the court and mean a breakdown of the system. The government should clear the pending recommendations to avoid such an eventuality. The collegium is expected to meet next week, and it is not a good prospect if the present impasse escalates.

The court may have genuine concerns over the ambitions and overreach of the political executive, and it would not like to lose its independence in any manner. The government is aggrieved that it has no role and voice in judges’ appointment. But the government cannot pressure the judiciary to resolve the problem arising out of these differing aims and perceptions. Nor can the court reject any suggestion to reform and improve the system. Consultation and cooperation is the way out, not confrontation.