On Monday, the Centre wrote a letter to Chief Justice of India (CJI) D Y Chandrachud, proposing the inclusion of government representatives in the 25-year-old Supreme Court-created two-tiered system for the selection of judges for infusing openness and public accountability into the recruitment process of constitutional court justices.
The letter from Law Minister Kiren Rijiju to the CJI is the latest in a string of criticisms from constitutional officials, including the Vice-President and Lok Sabha Speaker, who often say that the Supreme Court seems to be intruding into the jurisdiction of the legislative.
This is almost a month after the Minister publicly stated that the collegium system lacked transparency and accountability. In the letter issued on January 16, the minister has proposed including representatives from the government in the “evaluation committee” for Supreme Court and High Court judges to dispel the notion that the process for selecting constitutional court judges is opaque.
According to the reports, the letter’s thrust is consistent with government thinking, based on a decade-old comment by renowned Justice Ruma Pal. “As I have said elsewhere, the process by which a judge is appointed to a superior court is one of the best-kept secrets in this country,” the former Supreme Court justice remarked on November 10, 2011.
“The very secrecy of the process leads to an inadequate input of information as to the abilities and suitability of a possible candidate for appointment as a judge… The consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system,” she had said.
Former Supreme Court Justice Ruma Pal had stated in a speech made a decade ago, “Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system. The view that the collegium process of selection operates on you scratch my back, I scratch yours’ – is fast gaining ground.” She had said this in a speech denouncing the collegium regime.
However, the law minister’s proposals for changes to the method of the process (MOP) were rejected by the CJI-led five-judge collegium, which includes Justices Sanjay Kishan Kaul, K M Joseph, M P Shah, and Ajay Rastogi. Since none of these four justices moved on to become CJI, the collegium now includes Cl Chandrachud’s successor, Justice Sanjiv Khanna.
The Supreme Court believes that the proposal to include government representatives in the two-tier judge-selection framework is a new attempt to incorporate backdoor shades of the National Judicial Appointment Commission Act, which was unanimously approved by Parliament but deemed unconstitutional by a five-judge SC bench in October 2015. The NJAC was to be led by the GI and comprised two of the most senior judges, the law minister, and two notable people chosen by a panel consisting of the Prime Minister, the Leader of the Opposition, and the GI.
Reportedly, Justice Pal’s more than two-decade-old opinions regarding the secrecy of the judge-selection process gained significance after they were cited in the decisions of two justices on the five-judge bench that overturned the NJAC Act. The SC took over the judge selection process from the executive and committed it to the collegium in two Constitution bench decisions in 1993 and 1998. Prior to the creation of the collegium system by the Supreme Court, Article 124 of the Constitution stated that the President (read government) shall select SC justices in consultation with the CJI and such other SC and HC judges as may be necessary.
Earlier on November 25, 2022, the Law Minister at the Times Now Summit had asked, “What is the difference between consultation and concurrence?… If you expect the government to accept names recommended by the collegium, what is the government’s role?”
Also on December 15, he had flagged concerns over the government’s limited role in appointing judges and stressed that it is at odds with the spirit of the Constitution. He also expressed concern that more than five crore cases were pending in the country. The primary cause, according to him, was a lack of judges.
“The government took many steps to reduce the pendency of cases, but the government has a very limited role in filling vacancies of judges. The collegium chooses names, and apart from that, the government has no right to appoint judges,” Rijiju was quoted as saying.
