Ever since the Supreme Court struck down the creation of the National Judicial Appointments Commission (NJAC) as unconstitutional in October 2015 and restored the collegium system—essentially an invention of the judiciary to appoint judges to the higher courts—a deficit of trust between the Centre and the judiciary has been building. This has led to a continuing bout of shadow-boxing between the two pillars—while law minister Ravi Shankar Prasad recently questioned the quality of collegium-appointed judges, vis-a-vis “legendary” judges appointed before the system was adopted in 1993, Justice TS Thakur, who just stepped down as the Chief Justice of India, had on multiple occasions during his tenure blamed the government for sitting on the collegium’s recommendations.
To be sure, in its second NJAC judgment, in December 2015, the Supreme Court had observed on the need to make the collegium system more transparent—public feedback invited by the SC earlier had overwhelmingly flagged issues such as the ‘uncle judge’ phenomenon, the collegium’s complete lack of record-keeping, etc. The apex court, had therefore, asked the government to come up with a new draft of the Memorandum of Procedure (MoP) to guide appointments. But, when the government sought limited privileges for itself, proposing, for instance, that it have the power to reject a nomination on grounds of “national interest”, the judiciary saw this as a veto power invested with the executive that eroded the primacy of the CJI. The SC has twice returned the draft MoP. On its part, the Centre—despite clearing the appointment of a record number of high court judges last year—has gone slow on many appointments, even rejecting clearance to many nominations. In the latest instance, it has rejected 13 appointments to the Allahabad High Court. Such volleying between the government and the judiciary has meant that while there is little movement on any actual judicial reform, the pendency of cases remains a mammoth problem given the shortage of judges.
The SC has blamed the Centre for delaying clearing nominations, leading to 430 posts of judges and additional judges lying vacant in High Courts across the country. The government, in turn, has highlighted the staggering 4,400 vacancies in the subordinate judiciary, making appointments to which is the task of the High Court in most big states. Given over a year has been wasted, thanks to the stand-off, the appointment of Justice JS Khehar as the CJI offers both the Centre and the judiciary a chance to come up with a mutually acceptable MoP that ensures transparency.