Law minister Kiren Rijiju’s letter seeking participation of the executive in the process of appointments in the higher judiciary is welcome, should it signal a change in the confrontational course the Union government is on with respect to the Supreme Court on the matter. It looks like the government has now decided to creatively engage the judiciary to end the logjam.
Mr Rijiju has, as per reports, written to the Chief Justice of India with a proposal to amend the memorandum of procedure with the formation of a search and evaluation committee in which the Union and the state governments are represented during the selection of judges to the Supreme Court and the high courts, respectively. This is a follow-up to the Supreme Court’s 2015 judgment which struck down the constitutional amendment that had brought in the National Judicial Appointments Commission (NJAC), the minister said.
The Supreme Court had, in that judgment, indeed directed that “the government of India may finalise the existing memorandum of procedure by supplementing it in consultation with the CJI” and that “the Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four senior most puisne Judges of the Supreme Court”. On this basis, the minister has presented the new proposal.
It is an undeniable fact that the Constitution, in its original form, had prescribed a definite and decisive role for the executive in the selection of the judges in the higher judiciary and the Chief Justice of the Supreme Court was part of the consultative process. It is the judicial interpretation of the word “consultation” which gave the judiciary exclusive rights over the process, keeping the executive out of it. The apex court had struck down the NJAC Act, holding that it violated independence of the judiciary, a basic doctrine of the Constitution and that “in the matter of appointment of judges to the higher judiciary, as also in the matter of their transfer, the primacy in the decision-making process inevitably rests with the Chief Justice of India”.
It is a bit strange that, all these years, the government has refused to refer to the judgment to bolster its arguments for reclaiming its role in the process. Instead, it gave the impression that it will be satisfied with nothing less than the scrapping of the collegium system. The statements that have emanated from people in government, and of late from a high constitutional functionary such as the Vice-President, never displayed any meaningful engagement. The executive could have very well eschewed this shadow-boxing with the judiciary.
Now that the government has come up with a suggestion in line with the Supreme Court’s own judgment, one can only hope that it will lead to constitutionally sound and democratically right solutions. The government may now suggest transparent rules on ways to pick people who will be part of the search and evaluation committee, ideally ones with a working relationship with the judiciary. It must also prove the Opposition, which has already voiced concerns about the minister’s suggestion, wrong by holding on to transparent and non-partisan positions in this key issue. The government and the judiciary must together ensure that the cause of justice is not allowed to suffer any more.
