The Supreme Court has gently, yet firmly, spoken its mind on the recent remarks by Union Law Minister Kiren Rijiju on the Collegium system that decides on the appointment of judges. In a recent interview, Rijiju, who described the Collegium system as “alien” to the Constitution, said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show.” Justice S K Kaul’s response to this petulant framing of the matter as a Court versus government faceoff was measured: “It came from somebody high. Should not have. All I can say is, it should not have happened.” The bare facts are that there are vacancies in the apex court while the government is refusing to approve the names cleared by the Collegium for appointment as judges. The Court had reiterated the same suggestions after the government returned the files for reconsideration. If propriety and the law suggest that the government approve them, the law minister has sought to discredit the process itself by suggesting that it is also unconstitutional.
For long, the judiciary and the government have had their disagreements on how SC judges are to be appointed. The Centre proposed the National Judicial Appointments Commission (NJAC) to replace the Collegium system in 2015, but a five-judge constitutional bench of the Supreme Court struck down the Act a year later. Clearly, the executive has not reconciled with the rejection of the NJAC. But as Justice Kaul said on Monday, “maybe you have reservations on the law… But till the law stands, it is the law of the law… if the government says it will delay or not adhere to the law of the land, tomorrow somebody else may say something like this about another portion of the law”. As Justice Kaul said, the government should “look at the larger picture”. The larger picture is dismal. Despite a 2020 judgment that fixed timelines to clear appointments, recommendations are stuck at the government’s end. Such delays, Justice Kaul remarked, have affected recruitments with good candidates reluctant to join the judiciary. Shortage of judicial officers is a major reason for pendencies, which has been repeatedly flagged by the Court.
Yet, Rijiju has a point about the opacity in the system and, fortunately, judges, too, are veering towards the idea of institutionalising a system of transparency and evaluation that brings some sunlight into the appointment process without compromising its integrity. As this government has said so many times, and with reason, especially during Emergency anniversaries, that Indira Gandhi’s idea of a “committed judiciary” is the death knell of a democracy. The Constitution is clear on the balance of powers, the Supreme Court’s pushback against what tantamounts to overreach by the political executive is timely and welcome. In parallel, the court should step into overdrive when it comes to reforms within — that make it more transparent and accountable, the twin pillars on which independence often rests.