Chief Justice of India (CJI) D.Y. Chandrachud is scheduled to read out the oath of allegiance to the Constitution to five new judges of the Supreme Court on Monday. The occasion will see the largest number of top court judges taking oath simultaneously in nearly two years. Nine judges were sworn in in one go in 2021.
Monday’s swearing-in is also a sign that the court has prevailed over the government’s continuous attacks on the collegium system. The court has refused to let the disparaging public comments made by government functionaries about the collegium affect it. Instead, the court had used the opportunity to put pressure on the government through judicial orders and collegium resolutions to clear pending appointments. In the process, the Collegium has also fine-tuned its functioning to usher in transparency. The court has also used the acrimony initiated by the Centre to set down some ground rules for the government while making judicial appointments.
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For one, the collegium has given a clear direction that seniority of the names recommended should be kept intact by the government. The Centre should not pick one or two of the names recommended in a batch and appoint them as judges while keeping the rest pending. The government has complied with the collegium’s wishes in the case of the five names.
A collegium resolution of January 31 had specified that the new names should only be appointed after Justices Pankaj Mithal, Sanjay Karol, P.V. Sanjay Kumar, Ahsanuddin Amanullah and Manoj Misra, who were recommended on December 13 last year. “The names recommended by the Collegium by its resolution on December 13, 2022, shall have precedence over the two names recommended presently for appointment to the Supreme Court. The appointments of five judges recommended on December 13 should be notified separately and earlier in point of time before the two judges recommended by this resolution,” the resolution said.
Second, the court has made subtle but effective changes in the collegium’s functioning while making it clear that the collegium system is law as of now, and the government is welcome to bring a better one.
Resolutions are no longer a short list of names recommended for judgeships. They have once again become detailed, publishing reasons and discussions undertaken about the candidates. In fact, the extent of the collegium’s transparency has even made Law Minister Kiren Rijiju, an advocate of transparency within the collegium, react that some things should remain secret.
On January 18, the collegium let the public know about the government’s objections concerning the sexuality of Saurabh Kirpal, an openly gay lawyer recommended for the Delhi High Court. “Every individual is entitled to maintain their own dignity and individuality, based on sexual orientation,” the collegium had replied.
Again, two other Collegium resolutions had upheld the right to online free speech of two lawyers recommended for High Court judgeships. One of them had shared a web portal’s article critical of Prime Minister Narendra Modi. The second candidate had been called “highly biased and opinionated person” by the Centre for his social media posts criticising “important policies, initiatives and directions of the government”.