The stalemate over appointments of judges in the high courts and the Supreme Court has of late triggered unsavoury exchanges between the Union government and the Supreme Court of India. The latest is the apex court pinpointing that its striking down the amendment to the Constitution providing for a National Judicial Appointments Commission was behind the Union government delaying appointment of persons the collegium recommends as judges in the higher judiciary. It was preceded by a statement by law minister Kiren Rijiju who virtually challenged the apex court to issue its own notifications of appointments; the court responded also by saying that it was not unwilling to take up the job.
As per Article 124 (2) of the Constitution, the President appoints all judges except the Chief Justice of India after consulting him/her. The Constitution-makers were clear that the process belonged to the executive’s domain. The Constitutional Assembly indeed discussed, and rejected, the idea of giving the judiciary a major say in it after chairman of its drafting committee Dr B.R. Ambedkar called it a “dangerous proposition”. It amounts to transfer to the Chief Justice the authority to veto the President or the government of the day, he pointed out.
The Supreme Court, however, in the Second Judges case in 1993 expanded the interpretation of the word ‘consultation’, set up a mechanism of a collegium comprising the CJI and two senior-most judges of the apex court to recommend the names and made it mandatory for the government to accept such nominations. The court found that it must act in “protecting the integrity and guarding the independence of the judiciary”. It ensured that the CJI has primacy in matters of appointment and transfers and ruled that the executive cannot have an equal say in the matter.
The NJAC, introduced after amending the Constitution in 2014, broad-based the selection procedure as the commission, headed by the Chief Justice of India, would have had two senior-most judges of the Supreme Court, the Union law minister and two eminent persons. The court, however, struck it down, holding it violative of the basic structure of the Constitution. It also violated principles of independence of the judiciary and separation of powers, the court held.
The biggest criticism against the collegium system is that it goes against the spirit of the Constitution and introduces an opaque process in the selection of judges. The public has little knowledge about why a person is nominated or rejected. And when the government contributes its own layer of secrecy by holding back names without citing reasons, the opacity becomes total.
No one has a doubt that there must be a transparent system to appoint judges in the higher judiciary. The apex court has recently pointed out that the delays are stopping several people from even accepting an invitation to join the bench. Neither the Supreme Court nor the government has a mandate to continue with the present messy situation. It must be solved in the spirit of democratic values; but impatience on either side will not help the process....