Govt Seeks to Control Judges’ Appointment, Not Reform Judiciary

The Centre-judiciary tussle over appointment of judges is headed to a point of no return, writes Nagendar Sharma.

The continuing tussle for gaining supremacy on the appointment of judges to the Supreme Court and high courts, between the Narendra Modi government and the higher judiciary, appears to be headed towards a point of no return.

With Chief Justice of India, Justice T S Thakur mincing no words in repeatedly making his displeasure with the Modi government public for not clearing the recommendations sent to it by the Supreme Court collegium and the government showing no signs of backing-off, we are set to witness a dangerous showdown.

The turn of events during the past few days makes it clear that the Modi government is unwilling to yield despite the setback suffered by it last year when a Supreme Court Constitution Bench struck down a legislation to set-up the National Judicial Appointments Commission (NJAC) by amending the Constitution.

Government’s Belligerence

The belligerence being displayed by the Modi government in not clearing at least 75 collegium-recommended names for appointment as judges in various high courts many months back, defies logic.

Unnamed top ministers are of the opinion that Justice Thakur’s anger is misplaced since the Modi government is only following last year’s NJAC judgement of the Supreme Court, which had empowered the government to finalise the Memorandum of Procedure (MoP) for the appointment of judges.

These ministers, however, are being economical with facts. A judgement delivered by the Supreme Court’s Constitution Bench cannot be interpreted in a manner convenient for the government of the day, and it is only playing with fire by trying to subvert an important judgement through its faulty understanding of law.

Point of Disagreement

What could have been amicably sorted out through a meeting between ministers drafting the MoP and the collegium members is being sought to be turned into a point of major disagreement by the Modi government.

The fact remains that having lost a golden opportunity to reform the decades-old problematic collegium system for appointment of judges, despite being armed with a rare political consensus in 2014 soon after it stormed to power, the Modi government is now trying to settle scores with the judiciary through its arrogant approach.

Had the Modi government not insisted on including the Union law minister in the “illegal” NJAC, the country today perhaps may have been spared witnessing this ugly spat between the executive and the judiciary.

Flawed Collegium System

There is no doubt that eminent jurists had time and again raised serious questions about the impartiality of the collegium system. Former CJI late Justice J S Verma, who was among the judges who delivered the watershed 1993 judgement introducing the collegium system, had, during the last years of his life, surprisingly lamented delivering the verdict, given the shortcomings that had crept into the system during the last two decades.

In the backdrop of an overwhelming opinion against the collegium system among the country’s legal fraternity, the Modi government was presented with a unique opportunity to reform it in 2014, but it faltered because its focus was not on reforms but on how it could control the appointment of judges through the now aborted NJAC.

This situation actually also explains the Modi government’s anger against the judiciary, since it knows that it no longer enjoys the support of the political class in Parliament to bring back the NJAC legislation again.

Unending Struggle

• The names of 75 high court judges cleared by the collegium for transfer and appointment yet to receive Modi government’s approval.
  
• The memorandum of procedure for appointing judges is the bone of contention as the judiciary refuses to accept the Centre’s proposals.
  
• Several clauses, including the one on the law minister being a part of NJAC hasn’t gone down well with the judiciary.
  
• Centre’s insistence on including its clauses leads to a logjam, with the question on filling vacancies and judicial delay remain unaddressed.
  

AG’s Failed Move

During his arguments last year in the Supreme Court on the petition challenging the NJAC, Attorney General Mukul Rohatgi had described the collegium system as “dead and buried”, which, however, did not turn out to be so.

So, faced with a revived collegium system and a pro-active judiciary, the Modi government is trying to hit back, but in the process faces the danger of being hit wicket.

It would be better for a government, voted to power with the biggest single mandate in three decades, to leave the bitterness caused by its failed attempt to control the appointment of judges behind and move forward in the spirit of respecting the independence of the judiciary, the bedrock of Indian democracy.

(A former journalist with the BBC and Hindustan Times, the writer is media advisor to the Delhi chief minister. He can be reached at @sharmanagendar)

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