Here is an exchange of views (as reported in the newspapers) between a Bench of the Hon’ble Supreme Court and the Union Law Minister:
SC: The Centre is frustrating the appointment process of judges in higher judiciary by not clearing names recommended by the Collegium.
LM: 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.
SC: Let them give the power. We have no difficulty …when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty.
There are profound — I hesitate to say bitter — differences between the Supreme Court and the Executive on the interpretation of Article 124(2) and 217(1) of the Constitution of India. Under the original provisions, the power of appointment was vested solely in the Executive to be exercised in consultation with the Supreme Court and the High Court concerned. For 40 years, the practice was that the State government would consult the High Court concerned and recommend names to the Central government that would follow the procedure in Article 217 and appoint judges to the High Court. Similarly, the central government would propose names and, following the procedure in Article 124, appoint judges to the Supreme Court. Many distinguished judges were appointed by the Executive; some bad apples also found a place in the Courts.
The practice was reversed by judicial interpretation in the Second Judges case (1993) and the Third Judges case (1998). A new mechanism called the Collegium was invented. The Collegium took over the power of selection of judges for the Supreme Court and the High Courts. The central government may accept or return the recommendation. If the recommendation was reiterated, the government was obliged to make the appointment. It cannot be said that the quality of judges who have been appointed under the new procedure has been superior to the quality of judges appointed in the first 40 years. Many distinguished judges were appointed but some bad apples were also selected and appointed.
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Every government in office since 1993 has bristled against the altered procedure. However, stalling appointments has become a regular practice under the Narendra Modi government. It has also stalled recommendations reiterated by the Collegium which, as two Hon’ble Judges pointed out, was contrary to the law declared by the Supreme Court. As a result, there are seven vacancies in the Supreme Court and 381 vacancies among the 1,108 sanctioned posts of Judges in the High Courts (as on July 1, 2022). The greater tragedy has been that meritorious lawyers declined to be considered for judgeship or withdrew the name if the appointment had been stalled for months.
The National Judicial Appointments Commission (NJAC) was created under an Act of Parliament to give equal weight to the Judiciary and the Executive in the matter of appointment of Judges. There were a few wrinkles in the law that could have been easily ironed out but neither side made the effort. On October 16, 2015, the Supreme Court struck down the Constitution (Ninety-ninth Amendment) Act, 2014 and with it the National Judicial Commission Act also perished. (The dissenting judgement of Justice Chelameswar is as important as the majority judgement).
In my column (The NJAC Conundrum, Indian Express, November 1, 2015), I criticised the judgement vehemently, but I also suggested a common ground to make a new law. The strongest arguments on the side of the Executive are that in no other country of the world do judges select new judges and the Executive is best placed to assess the character and suitability of the potential Judge. The strongest argument on the side of the Judiciary is that serving Judges know best about the practising lawyers and serving district judges who alone are qualified to be elevated to the Bench. There is a large dose of truth in both arguments.
If the standoff continues, the situation will only get worse. There will be more vacancies. More vacancies will mean more, not less, difficulty in filling them. There will be more ‘declines’ and ‘withdrawals’. The legal system, already under considerable strain, will collapse. None will be sadder than the Judges, none will be happier than the Executive. The losers will be the people of India, especially those knocking on the doors of the Courts seeking justice.
I believe that the Executive cannot be totally excluded from the process of selecting potential judges. I also believe, given the current state of partisan, vindictive and majoritarian politics, the Executive cannot be entrusted with the sole power to select potential judges. Both Judiciary and Executive must find a place in NJAC 2.0. In my column, I had suggested that the Collegium may have the exclusive power to propose/nominate candidates; the NJAC may have the power to select and recommend; and the Executive may have the power (coupled with a duty) to appoint. The procedure can be refined further if the task is entrusted to a few non-judge legal luminaries.
The rising number of vacancies in the Courts — and commonsense — requires that the Executive and the Judiciary must display a degree of statesmanship to resolve the issue. Absent statesmanship, hard words will become harsh words, the wounds will continue to fester and justice will be the casualty.