A building face-off between the judiciary and the executive on the question of the system of judicial appointments, in which the language of the government towards the Chief Justice of India has been unduly sharp, is unfortunate. There is an impression that the government is seeking to give the episode the colour of a confrontation between the judiciary and the Parliament.
The 20-year-old collegium system of appointing and transferring judges of the higher judiciary is to be replaced by the National Judicial Appointments Commission, which was recently brought about through a constitutional amendment. Under the NJAC Act, the Chief Justice is to join the Prime Minister and the leader of the principal Opposition party to help locate two eminent persons who will be a part of a committee of six charged with appointments and transfers of Supreme Court and high court judges. Chief Justice H.L. Dattu has declined at this stage to be a part of the process to decide on the eminent persons. His reasoning appears sound.
The CJI has conveyed to the government that the validity of the NJAC Act is under challenge before a bench of the Supreme Court, and until the matter is disposed of it may be improper for the CJI to be a part of the machinery that drives the NJAC process. There is also a backdrop to this. Eminent jurist and top lawyer Fali Nariman had not long ago asked the most senior SC judge after the CJI to recuse himself from the bench hearing this case as the judge, under the law, is to be a part of the scheme to appoint and transfer judges of the superior judiciary.
Using words that were best avoided, attorney-general Mukul Rohatgi has said CJI Dattu “is triggering an avoidable constitutional stalemate. Can the mandate of the Constitution be stultified? We do not know whether it is an individual decision or an institutional decision.”
It is not clear how the Constitution is being sought to be shown the door by the Chief Justice. If a Constitution Amendment Act — no doubt passed by Parliament — is challenged in the Supreme Court, the apex court cannot refuse to hear the matter and take a view on merits. To do so would be to play tricks with the Constitution. It would have been more becoming if the government’s highest law officer had used temperate language instead of taking the issue to a high pitch as if the idea was to corner the CJI.
In the fitness of things, the government should have waited for the constitutional validity of the NJAC Act to be established in the apex court before looking for eminent persons to work the new scheme, and not rushed the matter.
