Journalism of Courage
In a letter written to the Chief Justice of India D Y Chandrachud, Union Law Minister Kiren Rijiju has “suggested” the inclusion of a government nominee in the decision-making process for shortlisting of judges, highly placed sources told The Indian Express. The suggestion is that the “evaluation committee” for Supreme Court and High Court judges should include a government nominee. The letter is yet to be discussed by the Collegium.
This is the latest development in an ongoing tussle between the Centre and the Supreme Court regarding the system of appointment of High Court and Supreme Court judges. As the Centre “sits on” appointments recommended by the Collegium, Rijiju’s letter comes after a hearing in the apex court on a plea by the Advocates Association Bengaluru seeking contempt proceedings against the Centre for the same.
Highly placed sources told The Indian Express the letter pointed out that the Memorandum of Procedure regarding the appointment of judges was still “pending finalisation” and gave “suggestions on how best it can be streamlined”.
The Indian Express explains how the Centre’s latest recommendation is different from its asks in the past.
According to Union Minister Rijiju’s letter, government representatives should be a part of the Supreme Court and High Court Collegiums. This would be a major departure from the existing system where the Collegiums comprise solely of senior judges.
The Supreme Court Collegium consists of the CJI and four senior-most judges of the apex court. High Court Collegium consists of the Chief Justice of the High Court and two senior-most judges of that particular court. Crucially, recommendations made by the Collegium are binding: while the government can flag concerns and ask the Collegium to reconsider, if the Collegium chooses to reiterate its recommendations, they become binding.
Rijiju’s suggestion, if put into practice, would fundamentally alter the system by putting a government representative in the Collegium itself. While it is unclear what specific powers this representative will have, just the mere presence of a non-judicial member is likely to change things. According to Rijiju, the role played by the government in choosing judges was vital, since judges themselves do not have access to reports and other information that the government does.
While also advocating for greater executive influence on judicial appointments, Union Minister Rijiju’s recommendations seem to mark a departure from the government’s prior position on the National Judicial Appointments Commission (NJAC). Previously, the Modi government has actively advocated for an NJAC with the Centre having the largest say in appointment of High Court and Supreme Court Judges.
In November 2022, Union Minister Rijiju called the Collegium System “opaque,” a sentiment which was reflected in Vice President Jagdeep Dhankhar’s comments in December. It was “never too late to reflect” on the NJAC, he said.
The NJAC is the central feature of a long-standing proposal to do away with the Collegium. In 2014, through the 99th Amendment to the Constitution, the government passed a bill that would set up the NJAC, giving it significantly more say in the appointment of judges.
The NJAC was to comprise the Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women. However, after a Supreme Court judgement struck down this new amendment, the government was forced to repeal the law.
Kiren Rijiju’s latest recommendation is markedly different – instead of proposing a new forum altogether, he recommends changing the existing mechanism of judicial appointments to include representatives of the centre.
“Its remedy is a poison pill for an independent judiciary,” Congress communication head Jairam Ramesh told The Indian Express, referring to Rijiju’s proposal. According to Ramesh, “All this is orchestrated confrontation with the judiciary to intimidate and thereafter capture it totally. The Collegium does need reform. But what this Government wants is complete subservience.”
This sentiment is echoed by other parties as well, who while acknowledging the imperfections of the Collegium system, are vary of greater central government interference in the judiciary.
“This is absolutely shocking. This is going to grossly undermine the very idea of independence of the judiciary and shall unsettle the fine balance as envisaged through the constitution. Is the government unable to resist the temptation of having a ‘committed Judiciary’?” said RJD leader and Rajya Sabha MP Manoj Kumar Jha.
Congress Lok Sabha MP and lawyer Manish Tewari also asked, “Why only a representative of the Government alone?”
While the proposed NJAC included greater and more diverse representation of India’s political heads, adding solely a representative of the ruling government is seen by many as an egregious attack not only on the independence of the judiciary but also on the competitive balance between the ruling party and the opposition.
