The Union Minister for Law and Justice Kiren Rijiju has written to the Chief Justice of India suggesting that a government nominee be included in the decision-making process to shortlist judges for appointment to the Supreme Court and high courts, The Indian Express reported on Monday, citing highly placed sources. The development comes amid an escalating tussle between the government and the Supreme Court Collegium on the appointment of judges.
In his letter to CJI DY Chandrachud, Rijiju gave “suggestions” on how best the Memorandum of Procedure for the appointment of judges, which is pending finalisation, “can be streamlined”, the IE report said, citing sources.
The letter by the Law minister, which is yet to be discussed by the Collegium, reportedly suggests that a government nominee be made part of the “evaluation committee” for Supreme Court and High Court judges.
The development comes amid a continuing row between the Centre and the top court on the issue of the appointment of judges to the top court and high courts. The top court is hearing a plea seeking contempt proceedings against the Centre for the delay in the appointment of judges despite the recommendations by the Collegium.
While the Supreme Court has been miffed over the Centre keeping pending the names suggested by the Collegium, the Centre has responded in equal measure, questioning the lack of transparency in the process of appointment of judges.
On November 11, Justice SK Kaul, a member od the SC Collegium, issued a notice to the Centre on the delay in appointment of judges and observed that “keeping names pending is not acceptable”.
Responding to the observations by the top court judge, Rijiju, while speaking at the Times Now Summit 2022, termed the Collegium system as “alien to the Constitution”.
“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…,” Rijiju had said.
On November 28, 2022, Justice Kaul made an apparent reference to the Law minister’s remarks and said such remarks should not have been made. “Let them give the power. We have no difficulty… I ignored all press reports, but what he says, that when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty… It came from somebody high enough. Should not have,” Justice Kaul said without naming the minister.
On December 7, the remarks by Vice-President Jagdeep Dhankhar criticising the Supreme Court’s decision to strike down the National Judicial Appointments Commission for appointing judges signalled an escalation in the conflict between the executive and the judiciary.
Dhankhar, addressing the first sitting of the Winter Session of Parliament, called the move a “severe compromise” of parliamentary sovereignty and disregarding the “mandate of the people”. He had also said Parliament, being the custodian of the “ordainment of the people”, was duty-bound to “address the issue” and expressed confidence that “it will do so”.
Last week again, Dhaknkhar raised the issue again, rekindling the debate over the doctrine of separation of powers, citing the Supreme Court’s landmark 1973 judgment in the Kesavananda Bharati case in which it ruled that Parliament had the authority to amend the Constitution but not its basic structure. Dhankhar said it will be difficult to answer the question “are we a democratic nation”.