New Delhi
The Narendra Modi government at the Centre and the Supreme Court led by Chief Justice of India D.Y. Chandrachud, seem headed for a confrontation with the Union Law Minister Kiren Rijiju targeting the collegium system of judicial appointments.
The Law Minister squarely blamed the collegium system for the inordinate delay in filling judicial vacancies forgetting the fact that the Centre was sitting over several recommendations made by the collegium on flimsy grounds.
Rijiju said: “Unless the procedure of the appointment of judges changes, the issue of high judicial vacancies will keep cropping up.” The minister was responding to a question in Parliament on the large number of pending cases.
He said the government had a limited role in appointing judges and that the government has time and again conveyed to the Chief Justice of India and High Court Chief Justices to “send names (of judges) that reflect quality and India’s diversity and give proper representation to women”.
The law minister added that the present system is not reflective of the will of the Parliament or the people. Referring to the National Judicial Appointments Commission (NJAC), Rijiju remarked that, “I don’t want to say much as it may seem like the government is interfering in the judiciary. But the spirit of the Constitution says it is the government’s right to appoint judges. It changed after 1993.”
The NJAC was instituted by the government through the 99th Constitutional Amendment Act in 2014. The Supreme Court, in what is now being referred to as the Fourth Judges Case, in 2015, ruled in favour of the primacy of the collegium and struck down the NJAC Act as unconstitutional.
The apex court had ruled that the NJAC violated the separation of powers doctrine and thus violated the basic structure of the Constitution.
MOP issue hanging fire for last 7 years
For the last seven years since then, the Centre has been refusing to put in place the Memorandum of Procedure (MoP) for judicial appointments by raising several new issues not envisaged in the MoP.
The Law Minister has gone on record saying: “the collegium system is alien to our Constitution. Tell me under which provision the collegium system has been prescribed.”
His comments have been echoed by Vice President Jagdeep Dhankar who said that a law passed by the Parliament, the NJAC Act, which reflects the will of the people, was undone by the Supreme Court and “the world does not know of any such instance.”
Again, while addressing the 83rd All India Presiding Officers Conference (AIPOC) in Jaipur recently, Dhankhar criticised the striking down of the NJAC Act and questioned the landmark 1973 Kesavananda Bharati case verdict, saying it set a wrong precedent.
Dhankhar disagreed with the Supreme Court’s 1973 ruling that Parliament can amend the Constitution but not change its basic structure and went on to say “one-upmanship and public posturing from judicial platforms is not good and these institutions must know how to conduct themselves”.
The Vice-President’s comments did not augur well with the CJI as it gave an impression that the government had a hand in his comments. Taking cue from Dhankar, the Law Minister lamented the “lack of transparency” in the appointment of judges.
He said: “Judges need not contest elections or face public scrutiny. The people are watching you and judging you. Your judgments, your work process, how you dispense justice…. The people can see, and assess…. They form opinions.”
Tussle began in 2015 when SC asked govt to put in place revised MOP
The tussle between the government and the judiciary started ever since the Supreme court in the NJAC verdict asked the Centre to put in place a MoP in consultation with the collegium headed by the Chief Justice of India.
The logjam continues for over seven years with the Centre insisting on a “veto power” to reject a candidate recommended by collegium on grounds of national security. It also wants an independent secretariat to screen names with government participation in the selection process.
However, the collegium rejected the proposal for a Secretariat contending that the government’s role is only after the names are recommended by collegium and not before selection. The existing personal staff of five collegium judges are sufficient to deal with the issue, it said.
The judiciary feels that appointing a secretariat and a screening committee to vet the names would “not only impinge on the independence of the judiciary, but could also lead to prospective names being leaked”, a nightmarish prospect on all accounts.
In the MoP that was approved, the collegium gave liberty to the government to reject any name on grounds of national security after giving reasons in writing but the final power to reject or approve the name was to remain with the collegium.
MOP stuck over govt insistence on veto power over names recommended by the collegium
But the Centre has been insisting on vesting a final “veto power” and has raked up the issue again. The concept of MoP was evolved in 1998 under which the procedure for appointment and transfer of judges are done as per mutually acceptable norms between the collegium and the government.
In October 2015, when the top court quashed the NJAC Act and restored the collegium system of appointment it wanted a new MoP to be put in place and asked the Law Ministry to do the needful. The government has since been dithering on finalising the MoP, thereby giving primacy to the collegium.
Collegium makes IB/RAW inputs public
Last week, in a surprise development the top court collegium headed by CJI D.Y Chandrachud, published on the court website the government’s objections to the elevation of three candidates for judgeship and the court’s counter to these.
The Law Minister took exception to this unprecedented move by the Supreme Court to make public the inputs of intelligence agencies, the Research and Analysis Wing (RAW) and the Intelligence Bureau (IB), on the government’s objections.
“Putting out secret and sensitive reports of RAW or IB in public domain is a matter of grave concern to which I will react at an appropriate time,” the Law Minister said.
“If the concerned officer who is working for the nation in disguise or secret mode in a very secretive location, he will think twice if tomorrow his report is put out in the public domain, and it will have implications. That is why I will not make any comments,” Rijiju said.
No revised MOP has translated into a delay in appointments
In the absence of a revised MoP, there is inordinate delay in filling the vacancies in the High Courts as well as in the apex court. With 407 vacancies in 24 high courts and six vacancies in the Supreme Court, the judiciary is facing an acute shortage of judges.
Presently there are 24 high courts in the country with a sanctioned strength of 1079, but has a working strength of only 672 judges thus leaving a shortfall of 407. In the subordinate judiciary, over 5,000 posts are vacant as against the sanctioned strength of 25,042.
Independence is the soul of a judiciary and if it fails to enjoy public confidence, its deliverables would never constitute “justice”.
As an institution, the judiciary is the last hope for the common man to get justice. Therefore, for the survival of democracy and to ensure confidence among the public it is essential that this institution is kept away from executive or other external interference.
The NDA government has the dubious record of interfering with judiciary ever since it was swept to power in May 2014. Within a few days of coming to power, it stopped the elevation of eminent lawyer and constitutional expert Gopal Subramanian as a judge of the Supreme Court over allegations that he was close to the Congress party.
Currently, the Supreme Court has seven vacancies of judges out of the sanctioned strength of 34 judges. Eight more judges are set to retire this year. But in High Courts, over 350 posts are vacant. It may well take two to three years to fill up these vacancies.
There are about 4.70 crore cases pending in various courts across the country and unless urgent measures are taken to fill up these vacancies the pendency cannot be reduced. Time has come for the nation to seriously introspect and openly discuss these issues to ensure that the Indian judiciary remains a truly independent institution.
The judiciary is an important bulwark against attempts to dilute, change and limit the fundamental and constitutional rights of Indian citizens and against majoritarian tendencies that seek to undermine our constitutional values of liberty, equality, democracy, and secularism.
