Ending the impasse

The judiciary-government face-off cannot go on indefinitely. The Supreme Court and the executive need to finalise the Memorandum of Procedure for appointment of judges

Updated - August 22, 2016 02:32 am IST

Published - August 22, 2016 02:08 am IST

The tension between the judiciary and the government on the appointment of judges to the High Courts and Supreme Court seems to be intensifying. The two have been locked into conflict on this issue for the last 16 months. Meanwhile, 475 seats in the High Courts remain unoccupied, a staggering and unprecedented number. The damage to an already overloaded judicial system is beyond calculation. Our higher judiciary at the State level struggles to keep its head above water, managing against odds to keep the system going, but its hopes of an efficient and responsive justice delivery system have receded considerably.

The collegium debate Supreme Court judgments in 1993 and 1998 gave rise to the collegium of the five senior-most Supreme Court judges, who exercised the supreme power of appointment to the judicial ranks. The judgments provided for a consultative process between the executive and judiciary, and for the government to return for reconsideration a name sent by the collegium. However, the appointment had to be made if the collegium reiterated its view. Essentially, the court had the last word; this was the cardinal concept laid down. The methodology for consultation was contained in a Memorandum of Procedure (MoP) formulated in 1999.

Sriram Panchu

In April last year, the government brought in the National Judicial Appointments Commission (NJAC) Act, after securing an unanimous vote for its passage in Parliament and some State Assemblies. This was widely seen, in the language of Star Wars , as the empire striking back, an attempt to break the judiciary’s monopoly by placing the Law Minister and two “eminent persons” (in whose choice the judiciary had a minority voice) at the deciding table, along with the Chief Justice of India and his two senior-most colleagues. Predictably, the NJAC was challenged. Several appointments were in the pipeline, but the court declined to direct these to be processed for appointment.

In October 2015, a five-judge Bench of the court held the NJAC to be unconstitutional, a decision that caused heartburn to the entire political class, and a severe loss of face for the government. It was clear that it would only be a matter of time before another attempt was made to undermine the supremacy of the collegium. That opportunity presented itself sooner than later. Following its judgment, the court, admitting that the existing collegium system had serious flaws, called for suggestions to improve it. Responses came in thick and fast. The court could itself have proceeded to reformulate the MoP, and in retrospect, it would have been wiser for it so to do. Instead it heeded the request of Attorney General Mukul Rohatgi that the government should be permitted to do this exercise. Perhaps the judges felt that this would compensate for having excluded the government from the deciding table, and that if the government drafted the revised MoP it would be co-opted into acceptance of the judgment. However, in its Order dated December 16, 2015 permitting the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism. It also specified that this MoP was for the faithful implementation of its decisions in the earlier cases.

The MoP runs into a few pages, and all it needed were insertions to cover the above points. This exercise should have taken a couple of weeks. However, it is eight months now and the document is far from finalised. It appears that the logjam is over the government’s assertion that if it rejects a candidate on the ground of national security or public interest, then such rejection is binding on the court. In simple terms, the last word would belong to the executive whenever this reason is invoked. This is where the court is unwilling to relent, since it goes against the grain of its judgments establishing the collegium.

The government’s position An observer can be forgiven for thinking that the Arab and the camel syndrome is playing out here. The government sought a limited role as the draftsman of the MoP, and then utilised this slender opening to prise open the door, seat itself at the table, and exclude the judiciary by invoking the mantra of national security or public interest. It may be noted that the existing MoP does not deal with the “last word” issue, that being contained in the judgment itself; the government is therefore out of bounds in its current attempt. It is also somewhat strange that the government positions itself as the protector of national security and public interest, as if the court will insist on a name going through where these are threatened.

This hiatus cannot go on indefinitely. Appeals, remonstrations and rebukes from the Chief Justice of India do not seem to have the desired effect. It looks as though apart from the court, the other branches do not view the deterioration of the justice system as a pressing issue. Perhaps the time has come to face the problem squarely, and to adopt a more direct method of engaging for resolution. The Attorney General could take the lead in meeting both sides, formulating and reformulating proposals. Else, the Law Minister, with necessary authority, could engage with the judges. Another option is for the Prime Minister to take the lead to invite the Chief Justice and senior judges for a discussion. And let us not rule out the ultimate possibility of the President being just that bit proactive to bring the heads of the two institutions together. These above methods may serve to end the impasse and get matters resolved. If these are not tried, or are unsuccessful, the Supreme Court should consider recalling its order permitting the government to draft the revised MoP, and to undertake the task itself. That exercise should take a week at the most.

Sriram Panchu is a Senior Advocate at the Madras High Court. Email: srirampanchu@gmail.com

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