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22 November, 2016

Cloud over prospective judges

BRP Bhaskar
Gulf Today

The two-year-old tussle between the Executive and the Judiciary over filling the vacancies in the superior courts has entered a new phase with the Supreme Court collegium insisting on the appointment of all 43 persons whose names the Government had rejected. 

The Constitution vests the power to appoint superior court judges in the President, with the stipulation that there should be consultations with the Chief Justice of India. Since the President, as constitutional head of state, is required to act on the advice of the council of ministers, the Executive had the last word until the Supreme Court through a series of judgments arrogated primacy to the Judiciary.

Successive governments went along with the court-designed scheme mainly because, in the absence of a firm majority in Parliament, the Executive was too weak to pose a challenge. On coming to power the Narendra Modi government enacted a law to set up a National Judicial Appointments Commission to select new judges.

It sought to put an end to the system of judges appointing judges by abolishing the collegium, comprising the CJI and four seniormost judges, which was created by the apex court, and create a commission to make recommendations on appointment and transfer of judges. The commission was to have six members – the CJI and two seniormost judges, the Law Minister and two eminent persons to be selected by a committee consisting of the CJI, the Prime Minister and the Leader of the Opposition.

The CJI blocked the formation of the commission by refusing to join the committee to select its two independent members. Later, acting on petitions challenging the new law, the Supreme Court struck it down and restored the collegium.

That led to a standoff between the Executive and the Judiciary. Vacancies in the superior courts kept rising as the Government delayed sending up to the President the names recommended by the collegium on procedural grounds. The CJI’s exasperation found expression in a speech at a function attended by the Prime Minister and in some harsh observations in the courtroom. At one stage he even warned that the court might summon the bureaucrats in charge of the Prime Minister’s office and the Law Ministry to appear in person to explain the cause of delay.

The only procedural duty cast on the government is to make a background check on the persons chosen by the collegium to ensure that there is nothing in their record that disqualifies them. This is done on the basis of inputs from intelligence agencies.

The CJI’s tongue-lashing caused the government to relent but in a final attempt to insinuate a role for the Executive in the appointment of judges, while sending to the President 34 of the 77 names recommended by the collegium, it asked that the collegium reconsider the remaining 43 names. Last week the collegium sent back all the 43 names, leaving the government with no option but to forward them to the President. 

While the Judiciary can thus have its way, the shadow this episode casts on the prospective judges is bound to linger for long. Since transparency is lacking in the entire process, the public remains in the dark about the reasons why the government was unwilling to approve their names as also about the factors which prompted the collegium to overlook its objections.

This was not the first time that the Modi government refused to go along with the collegium. Soon after assuming office, it had refused to send to the President the name of a respected jurist, Gopal Subramanium, whom the collegium had chosen for the post of Supreme Court judge.

It was clearly a vindictive act. Gopal Subramanium had assisted the apex court as amicus curie in the investigation of the Sohrabuddin Sheikh encounter case in which Modi’s chief lieutenant Amit Shah, currently president of the Bharatiya Janata Party, was arrested along with a few top police officers of Gujarat. The government could have its way then as Gopal Subramanium withdrew the consent he had given earlier to serve as judge, citing the administration’s mala fide intent. That precluded the collegium from renominating him.

Gopal Subramanium’s case illustrates the danger inherent in giving the Executive a decisive role in the appointment of judges. But leaving the appointments entirely in the hands of a few judges is, by no means, a satisfactory alternative. Experience shows that under political compulsions the Executive makes efforts from time to time to give representation to all sections of the society in the Judiciary. On the other hand, the collegium system tends to work to the disadvantage of the socially disadvantaged groups. -- Gulf Today, November 22, 2016.

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