Why is there friction between the government and the judiciary?
The Hindu
What is the trigger for the current conflict? Why did the Supreme Court strike down the law on National Judicial Appointments? What is the government’s grouse against the Collegium system? What is the new CJI planning?
The story so far: A major confrontation is on between the Union government and the Supreme Court over the former’s resentment towards the Collegium system of appointments and its push to have a dominant say in judicial appointments and transfers. The government has also started airing its grievance against the invalidation of the National Judicial Appointments Commission (NJAC) by the court in 2015. The current round of conflict has two triggers. One is the government’s repeated public criticism of the Collegium system on the ground that it is “opaque”. The other concerns a ping-pong battle between the Collegium and the government over the names being recommended and reiterated for appointment in constitutional courts.
On October 17, Law Minister Kiren Rijiju shot a salvo at the Supreme Court Collegium, saying they were “preoccupied” with making judicial appointments when their primary job is delivering justice. Mr. Rijiju’s comments came at the fag end of the 49th Chief Justice of India N.V. Ramana’s tenure, which saw the Collegium recommend 363 names for High Court judgeships and 11 names for the Supreme Court. On November 6, Mr. Rijiju complained again on the lack of accountability of the Collegium system and made references to the court striking down the NJAC law, which gave the government an equal say in appointments, in October 2015. His criticism coincided with Justice D.Y. Chandrachud taking over as top judge on November 9 for a two-year tenure.
Meanwhile, on November 17, Chief Justice Chandrachud agreed to list in due course a writ petition to reconsider the Collegium system. The SC also began its counter-offensive with the CJI advising that the Collegium and the government should work with a sense of “constitutional statesmanship” rather than find fault with each other. On the judicial side, a Bench led by Justice Sanjay Kishan Kaul took cognisance of the government sitting on Collegium recommendations for years together for “undisclosed reasons”. It later went on to link the government’s willingness to “cross some Rubicons” and take on the judiciary by delaying Collegium recommendations to the quashing of the NJAC mechanism.
But the same evening, there were media reports that the government had returned 20 names recommended by the Collegium for High Court judgeships. A few days later, Vice-President Jagdeep Dhankar remarked that a law — without specifically naming the NJAC — passed by Parliament and expressing the will of the people had been “undone” by the court disregarding parliamentary sovereignty.
On December 8, Justice Kaul’s Bench said nobody was stopping the government from bringing a new law on judicial appointments, but till then the Collegium system and its Memorandum of Procedure (MoP) was the “final word”. The Court said that even if a law was enacted in the future, its constitutionality would be duly scrutinised by the Supreme Court.
The parliamentary standing committee on Law and Personnel led by senior BJP leader Sushil Kumar Modi in its report said both the judiciary and the government need to do some “out-of-the-box” thinking to deal with the “perennial” judicial vacancies in High Courts. It said that both institutions were not adhering to the timeline given in the Second Judges case and the MoP.
The procedure for appointment of judges to the Supreme Court and the High Courts, in accordance with the Collegium system, was laid down in the MoP prepared in 1998. It states that the initiation of a proposal for appointment of Supreme Court judges vested with the CJI and that of High Court judges with the Chief Justice of the High Courts concerned. The MoP required the Chief Justices of High Courts to initiate the proposals six months prior to vacancies. The Constitution (99th Amendment) Act was passed by Parliament to provide for a National Judicial Commission, which was duly formed by the NJAC Act. On October 12, 2015, the court struck down the NJAC Act and the Constitution Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. However, the court said the 21-year-old Collegium system needed a re-look. The court directed the government to finalise a revised MoP in consultation with the CJI and the Collegium. A revised MoP was sent to the CJI by the government on March 22, 2016 for the response of the Collegium.
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