Centre vs Supreme Court on judicial appointments: The story so far

By Srishti Ojha: The ongoing tussle between the judiciary and executive over the issue of appointment of judges to the higher judiciary, with remarks coming from both sides, has lit up the headlines in the last few days.

reasons? A collegium system for appointing judges to the higher judiciary, as well as a delay in the Centre’s approval of the names of those recommended by the collegium.

Between the Law Minister’s statements criticizing the collegium system of appointment and the Supreme Court’s outrage over the Centre’s delay in clearing names, the Center reportedly sent back 20 files to the collegium for reconsideration, expressing strong reservations about those recommendations.

According to sources, 11 of the 20 cases were fresh cases, while the other nine were reiterations made by the top court collegium.

CURRENT SYSTEM

The criticism of the existing collegium system arises from the fact that it has evolved through judgments of the Supreme Court and is not rooted in any law.

‘Should judges appoint other judges’ is what has been a topic of longstanding debate.

The system finds its roots in three judgments called the Judges Cases, which interpret the provisions of the Constitution, including Articles 124(2) and 217, which are about the appointment of judges for the Supreme Court and high court, respectively, by the President .

The second Judges Case in 1993 worked out the Collegium System, upholding the primacy of the CJI in matters of appointment and said that the executive cannot have an equal say in the matter.

This case established that, while the executive could request reconsideration of the names recommended by the CJI-led collegium, it was obligated to approve appointments once the names were reiterated.

In 1998, the third judges case established additional guidelines for the process.

This primacy of the collegium of senior most judges of the country’s top court has recently been the subject of sharp remarks from Law Minister Kiren Rijiju, who has previously expressed his disapproval of the system.

RECENT COMMENTS THAT REKINDLED THE CONTROVERSY

Last year, while addressing the Lok Sabha, Kiren Rijiju had said that the Center cannot blindly accept the recommendations made by the Supreme Court collegium for appointments to the high court and Supreme Court.

In September of this year, the Law Minister spoke about the need to rethink the collegium system at an event.

Later in October, he had again called the collegium system opaque and claimed that judges are often preoccupied with deciding who will be the next judge, and resultantly, the primary job of delivering justice suffers.

“I know that the people of the country are not happy with the collegium system of appointing judges. If we follow the spirit of the Constitution, then appointment of judges is the job of the government,” the Law Minister said.

The Law Minister also claimed that it is the government’s responsibility to appoint judges.

While speaking at the India Today Conclave Mumbai 2022, the Law Minister also addressed the Supreme Court’s decision, saying that, in striking down the National Judicial Appointments Commission (NJAC), the court should have told the government which system would be better.

“It is not only the government or the judiciary that would decide. This is what the National Judicial Appointment Commission suggested. It would be the combined efforts of the CJI, the law minister, two senior judges, and two eminent personalities that would choose the names for elevation,” he said, adding, “Nowhere else in the world does there exist a system in which judges appoint judges.”

The Law Minister had also commented on the politics of judges, stating that the politics of politicians had nothing to do with what happened in the judiciary.

He also claimed that many judges were dissatisfied with the collegium system.

Former Chief Justice of India NV Ramana, speaking at an event in October, had however opined that concerns about the collegium system from the government, lawyers, and others cannot be ignored or dismissed and must be addressed.

Contrary to this, the 49th CJI, UU Lalit, after his retirement, backed the system which has proven to have worked effectively and is here to stay.

He had also responded to Rijiju’s criticism of the system by saying that there was a need for dialogue and that the current system needed to be improved.

The Chief Justice of India, DY Chandrachud, himself addressed the collegium issue recently at a Constitution Day event, where, in the presence of the Law Minister himself, he said that no institution in a constitutional democracy is perfect and that the judiciary has worked within the existing framework of the constitution as it was interpreted and given to the judges.

The CJI also said that all the judges of the collegium, including himself, are faithful soldiers who implement the Constitution, and their solution to imperfections is to work their way within the existing system.

What may be called the Supreme Court’s first retort to the Minister’s remarks came recently on November 28, when a bench led by Justice SK Kaul expressed displeasure towards his criticism of the system during an interview.

It shouldn’t have happened, the bench said, when a senior lawyer referred to the Law Minister’s remark that the government can’t be expected to merely sign on to collegium recommendations. The bench also chastised the government for delaying appointments, despite the fact that over 68 recommendations are still pending with the Centre.

The statements came from the bench three days after the Center is reported to have sent back 20 recommendations (November 25)) including nine names reiterated by the collegium, which according to practice must be approved by the Centre.

VIEWS OF LEGAL EXPERTS

Govind Mathur, former Chief Justice of Allahabad High Court, told India Today that he, too, is a critic of the collegium system. However, he added that the law of the day for the appointment of judges to constitutional courts is as laid down by the Supreme Court in the Second Judges case, and as per Article 141 of our Constitution, that is binding on everyone.

Justice Mathur also stated that the government, regardless of its differences on the issue, must come forward and respect the law. Referring to the names reiterated by the Supreme Court a second time is not only an insult to the Supreme Court but also disrespectful to the law.

In this regard, India Today spoke with a few legal experts:

Senior advocate PH Parikh said that it is past time for both parties to sit down and discuss the issue, as what is happening is detrimental to the system.

You cannot claim that the government has no say and must simply approve whatever the Collegium sends, said Parikh, adding that if a serious objection is raised, the appointment should be canceled.

Senior Advocate Vikas Singh believes the court is being overly gentle with the government on this issue, and that returning files, particularly those that have been repeated, is tantamount to contempt.

He added that, while he has some issues with the system, it is now the law of the land and will remain so for as long as the judgment stands. This type of situation should not have occurred in the last few years.

Singh further said that if the government wants to appoint someone, it moves quickly. And if they don’t want to appoint someone, they postpone it for a long time.

(With input from Aneesha Mathur)

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