Many see it as a renewed attempt by the government to interfere in the appointment of judges to the higher judiciary amidst the ongoing tussle between the government and the Supreme Court over the collegium system.
Reports emerged on January 16 that Union law minister Kiren Rijiju wrote to the Chief Justice of India (CJI) suggesting that a representative of the Government be included in the search-cum-evaluation committee.
The news of this letter created a stir among lawyers and the general public alike. Many saw it as a renewed attempt by the government to interfere in the appointment of judges to the higher judiciary amidst the ongoing tussle between the government and the Supreme Court on the collegium. Previously, the government’s attempts to place its representative in the judges-only collegium were shot down by a Constitution Bench in its National Judicial Appointment Commission (NJAC) judgment in 2015.
Subsequently, the law minister took to twitter to clarify that his suggestion was being made in line with the observations and directions of the Constitution Bench. He added that the Constitution Bench had sought to restructure the Memorandum of Procedure (MoP) and the search cum evaluation committee is envisaged for preparation of a panel of eligible candidates.
What is the Collegium System?
The collegium system is the way judges of the Supreme Court and the high courts are appointed and transferred. The CJI, with the four senior-most judges of the apex court, makes the recommendations and sends them to the government for consideration. The government, upon analysis, either takes the recommendations forward or sends them back to the collegium for reconsideration. The system evolved by means of Supreme Court judgments, not by an act of Parliament or a constitutional provision. The First Judges case (1981), Second Judges Case (1993), Third Judges Case (1998) and the NJAC case (2015) evolved the collegium system and upheld it as the law of the land.
In 2014, the Union Government tried to replace the collegium with the National Judicial Appointments Commission (NJAC). The NJAC comprised three Supreme Court judges, the Union law minister, and two civil society experts. It further mandated that a person would not be recommended by the NJAC if any two of its members did not accept a recommendation. However, it was struck down by the Supreme Court in 2015.
The collegium system has been criticised as being non-transparent and opaque, as the reasons for recommending candidates for transfer or appointment are not made public.
Why did the law minister cite the MoP?
The MoP is an agreement between the judiciary and the government with a set of guidelines on making appointments to the higher judiciary. It was first framed in 1999, pursuant to the decisions in the judges cases. Thereafter, the appointments were made in consonance with it.
In the NJAC judgment, the court observed that the MoP must be revisited to avoid any complications. Subsequently, the government drew up a new draft of the MoP in 2017 and sent it to the Supreme Court. However, the parties have not been able to reach a consensus on the 2017 draft.
The law minister, in his tweet, suggested that the letter was an attempt to restructure the existing MoP.
Lawyers divided over law minister’s suggestion
Moneycontrol spoke to a few lawyers about the controversy. While a section views it as a way to make appointments transparent, others feel the government is making an attempt to expand the collegium without changing the existing law.
Deserving candidates will get a chance
“Based on the law minister’s tweet, it appears that he seeks inclusion of a government representative in the search committee. I am in favour of this,” said Vikas Singh, Senior Advocate and the president of the Supreme Court Bar Association. Highlighting the importance of a search committee with all the relevant stakeholders, Singh said that the Attorney General, Advocate General and members of the bar should be a part of it, alongside representatives from the government.
“The collegium now is recommending people they personally know. A search committee will ensure that more deserving candidates are elevated to the bench,” he said.
Some lawyers also feel that a search-cum-evaluation committee, with a government representative, will remove the opaqueness as the appointment of judges has always been a secretive process. Commenting on the issue, Anushkaa Arora, Principal & Founder, ABA Law Office, said “This may prove to be a positive step in the direction of easing challenges and removing obstacles in judicial processes. This can be termed as a unique formula to ensure diversity in the system.”
Attempt to bring back NJAC without changing the law
Senior Counsel Gopal Sankaranarayanan disagrees with the law minister’s suggestion. He notes that until there is a law brought out to this effect or an amendment to existing judgments upholding the collegium system as the law of the land, such changes cannot be effected. “I believe that so far the Government has had innovative ways to try and filter candidates, through Intelligence Bureau Reports, and by sitting on proposals and waiting for changes in collegium compositions. However, the government has never had a formal say in collegium proposals thus far,” said Gopal.
He however points out that if such a change is implemented, more than a Government nominee, there should be a representative of lawyers, who are the ones interacting with each other and the Bench on a daily basis. “Maybe the Attorney General,” he suggests.
Pointing out that the government always has the power to return collegium recommendations, Abhinay Sharma, Managing Partner at ASL Partners, feels that the minister’s suggestion smacks of an “attempt to bring the NJAC in through a backdoor entry, which was held to be unconstitutional by a 5-judge bench of the Supreme Court in 2015.”
Sharma also notes that the judiciary is in the best position to decide the appointment of judges to the bench since they know the fraternity inside out and have the capability to make decisions in the interests of justice. “Judges are the flag-bearers of the Constitution and have vowed to faithfully abide by and implement Constitutional provisions,” he said.