In a clear indication that the Narendra Modi government is determined to restructure the collegium system of appointments to the higher judiciary, Law Minister Kiren Rijiju has written to Chief Justice of India (CJI) D.Y. Chandrachud to suggest a nominee of the Union government in the Supreme Court Collegium and a State representative in each of the High Court collegiums.
The four-page letter has raised a long list of complaints and sought the formation of a search-and-evaluation committee, which will have government representatives, to suggest names to the collegiums for appointment as judges in constitutional courts.
Explained | The workings of the Supreme Court collegium
The letter is a fresh salvo by the Law Minister after recent statements by the Vice-President and the Lok Sabha Speaker against the collegium system. The letter coincides with the fact that collegium recommendations for appointment of five Supreme Court judges lie pending with the government.
The government’s fresh move prompted Congress general secretary Jairam Ramesh to allege that the government wants the judiciary to be “subservient”. He called it a “poison pill for the judiciary”. Delhi Chief Minister Arvind Kejriwal called the move “extremely dangerous”, and said there should be no government interference in judicial appointments.
“I hope you honour Court’s direction! This is precise follow-up action of the direction of the Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission (NJAC) Act. The SC Constitution Bench had directed to restructure the MoP (Memorandum of Procedure) of the collegium system,” Mr. Rijiju tweeted in response to Mr. Kejriwal.
18-week time
The Law Minister’s letter found fault with a Supreme Court judgment in 2021 which had given the government maximum 18 weeks to process the names forwarded to the Law Ministry by the High Courts and send them to the Supreme Court Collegium for final approval.
This came as a surprise as, on January 6, Attorney-General R. Venkataramani had informed a Bench of Justice Sanjay Kishan Kaul that the government would adhere to timelines fixed by the court to process recommendations for judicial appointments. The government said the High Courts were not making recommendations six months in advance of impending judicial vacancies and the Supreme Court Collegium rejects an average of 25% names recommended by the High Courts.
The January 6 hearing witnessed the top court remark that the government has been sending its own lists of names for judgeships, “insisting” on them. The Supreme Court also highlighted how the government is sitting on names recommended by the collegium for months on end without a word.
Calling the escalation in confrontation between the judiciary and the government as “orchestrated”, Mr. Ramesh said, “The collegium needs reform. But what this government wants is complete subservience. Its remedy is a poison pill for the judiciary”.
Independent judiciary
“How is it possible @KirenRijiju ji in the teeth of NJAC judgment of SC!! Though there are inherent issues in the collegium system, but the reigning sentiment in the country is to protect the independence of judiciary,” Congress Rajya Sabha member Vivek Tankha, who is a senior advocate at the Supreme Court, said in a tweet.
The underlying message in the Law Minister’s letter is that the government is still not done with drafting the MoP for judicial appointments. It has been seven years since a Constitution Bench, in October 2015, struck down the NJAC that had given the government an equal role in judicial appointments. In the NJAC verdict, the court had asked the government to work, in consultation with the collegium, on evolving a more transparent and accountable MoP.
A revised draft MoP was sent to the then CJI by the government first on March 22, 2016 for the response of the collegium. After exchange of notes with the government, the collegium sent its final response on the proposed revisions to the MoP on March 13, 2017. However, the government had rekindled communication with the collegium on July 4, 2017. The immediate trigger was the Supreme Court’s suo motu contempt action against Calcutta High Court judge C.S. Karnan, and his six months’ prison sentence.
The government’s July 2017 letter referred to remarks from no less than two judges on the Bench that Karnan’s case was an ideal example of the failure of the collegium system to make a “correct assessment of the personality” of people under scanner for judgeships.
The July 2017 letter figures prominently in the current missive of the Law Minister to buttress the argument for more prominent government representation in the appointments’ process. The SC said it would follow the collegium system as long as the NJAC verdict remains the law. Parliament was free to introduce a new law, but it would be subject to judicial review.
