The Union government has returned 20 files of appointment of judges to the Supreme Court Collegium while reportedly expressing ‘strong reservations’. In the past few months there has been a sort of a cold war between the Union government and the Higher Judiciary, with the former making adverse remarks about the viability of the Collegium system and the latter defending the same and expressing anguish that the Centre was delaying the process of judicial appointments.
Once again, files of recommended names, have been returned to the Collegium for reconsideration. Out of these 20 files, 11 were fresh recommendations while 9 were reiterated. As a norm, reiterated recommendations have to be approved by the government. However, the Union government has made a departure from this last year itself when the collegium recommended the elevation of advocates Nagendra Ramachandra Naik and Aditya Sondhi to the Karnataka High Court not once, but three times.
If there is a disagreement between the Collegium and the executive, and the former still wants to go ahead with the appointment, the executive must accept it as “healthy convention”, the Supreme Court has said. In April, a three-judge Supreme Court bench headed by Chief Justice SA Bobde passed an order on appointment of judges to the high courts which said:
“If the Supreme Court collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously…such appointment should be processed and appointment should be made within three to four weeks.” the court also set a period of 18 weeks within which the appointment of High Court judges should ideally be complete.
Kiren Rijiju badgers the system
In past months, Union Law Minister, Kiren Rijiju has made comments against the collegium system, openly criticizing it and making public comments about the viability of the collegium system. Previously, this minister held the portfolio of minister of state for home.
In July 2022, during the monsoon session of the Parliament, Rijiju had said that the government cannot just sign off on recommendations blindly and needs to conduct background checks and disapprove those which do not meet the laid out grounds.
On September 17, again, while speaking at an event in Udaipur, Rjasthan, RIjiju had said there was a need to rethink the collegium system to expedite the process of appointments to the higher judiciary and also blamed the collegium system for pending appointments in the higher judiciary. “The system in place is causing trouble and everyone knows it,” he said. He said appointments in higher judiciary are “pending”, but “not due to the law minister but due to the system”.
In September, thereafter, a Supreme Court bench headed by CJI NV Ramana had censured the executive for “cherry-picking” the members of various tribunals, which are quasi-judicial bodies.
Brazenly undeterred, In October 2022, Rijiju once again sparked a controversy by saying that judges spend half their times spent in deciding who to appoint as judges instead of delivering justice, as he termed the collegium system “opaque” and described the Indian selection system as the only one where judges appoint judges. He made these comments at an event held in Ahmedabad called Sabarmati Samvad, organised by weekly magazine Panchajanya (the magazine published by the Rashtriya Swayamsevak Sangh).
“If we follow the spirit of the Constitution, appointing judges is the task of the government. Secondly, there is no practice anywhere in the world except in India that judges appoint judges themselves… People can see the politics among the leaders but they do not know the politics going on inside the judiciary while appointing judges as the deliberations are intense,” he added.
When asked about these comments during ‘Rozgar Mela program’ in Shillong, he told media persons that he is firm on his stance.
Speaking at the India Today Conclave, Union Law Minister, Kiren Rijiju on November 5, 2022, had made some strong remarks against the Collegium system, calling it ‘opaque’ and lacking accountability. He said his government is making the most of the present system till an alternative mechanism is put in place.
Speaking to the Indian Express on the charge of the Collegium working being opaque, Justice Chandrachud said there is a “legitimate… public interest in knowing how judges are appointed” but “we also need to preserve the privacy of the people”, members of the Bar or judges of the High Court “who are under consideration”.
The Executive-judiciary faceoff
On November 11, 2022, the apex court had issued a notice to the union law secretary on a petition filed over the delay in clearing the names approved by the Collegium for appointment as judges. A bench comprising Justices Sanjay Kishan Kaul and Abhay Sreenivas Oka have been hearing the matter which is a contempt petition filed by the Advocates Association Bengaluru in 2021 (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary) against the Centre not approving 11 names reiterated by the Supreme Court collegium. The Association contended that the Centre’s conduct is in gross violation of the directions in PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd wherein the Supreme Court directed that names reiterated by the Collegium must be cleared by the Centre within 3 to 4 weeks.
“Keeping names on hold is not acceptable. It is becoming some sort of a device to compel these persons to withdraw their consent as has happened”, the bench noted in the order. The Court stressed that after second reiteration, the only option before the Centre is to issue the appointment order. In some cases, the Centre sought reconsideration. But despite a second reiteration, the government did not clear the names and the persons withdrew their names and the Court lost the opportunity to have an eminent person on the Bench.
On November 25, speaking at Times Now Summit 2022 Rijiju had said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…” Describing the Collegium system as “alien” to the Constitution, he had said, “You tell me under which provision the Collegium system has been prescribed.”
On November 28, referring to the comments made by Rijiju but without naming him Justice Kaul said, “When someone high enough says that..it should not have happened..Mr AG, I have ignored all press reports, but this has come from somebody high enough also. With an interview… I am not saying anything else..”
He further said, “The issue is, names are not being cleared. How does the system work? We have expressed our anguish…It appears that the Govt is not happy that the NJAC has not passed the muster. Can that be the reason to not clear the names?” The judge continued, “The whole process takes time, IB inputs are taken. Your inputs are taken. Supreme Court collegium considers your inputs and sends the name. Once it is reiterated, that is the end of the matter, as the law stands now.”
Justice Kaul therefore asked the Attorney General and the Solicitor General to convey the “sentiments of the bench” to the Govt and ensure that law of the land is followed.
The matter has been posted for hearing on December 8.
Appointment of judges
The appointment of judges used to happen under the full discretion of the executive until the case of the Supreme Court Advocates on Record Association vs. Union of India in 1993.
The first case to deal with on the issue of appointment of judges is SP Gupta vs. Union of India AIR 1982 SC 149. In this case, a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary and the control of appointment of judges vested with the executive, virtually. This was not to be changed until eleven years later in 1993.
In Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441 the SC overruled the judgement in SP Gupta vs. Union of India and introduced a specific system to appoint judges rather than affirming the executive discretion as was done in the SP Gupta case.
In 1998, the President referred to the Supreme Court [‘Presidential Reference’ for clarification of SC AOR Association vs. Union of India, AIR 1999 SC 1], using his constitutional powers vested in him under Article 143, for clarification, the SC’s guidelines in the case of SC AOR Association vs. Union of India. The President called for an opinion of the SC on multiple questions on transfer and appointment of judges and the role of CJI in the whole process.
This judgement outlined a more detailed procedure to the whole appointment process by mandating that the CJI should consult with 4 senior most judges of the Supreme Court while making recommendations to the SC and that the sole individual opinion of the CJI does not constitute consultations within the context of Article 124(2). For a detailed analysis of the evolution of the collegium system, click here.
Now that the Centre has returned 20 files to the Collegium, it remains to be seen what will transpire on the next date of hearing of this case as these recommendations continue to remain in limbo. The constant back and forth between the executive and the judiciary is not only causing tension between the two pillars of democracy but is reflective of how this friction is causing undue delay in judicial functions. Appointment of judges is an important task. Earlier this year, the Union Law Ministry had informed the Parliament that 405 positions of High Courts judges were vacant as of March 2022. The total sanctioned strength is of 1,104 judges in High Courts out of which 699 positions were filled. As of November 1, the number of vacancies at High Courts was 335 against a sanctioned strength of 1,108.