Amid the tug of war between the Centre and Supreme Court Collegium over the appointment of judges, Union Law Minister Kiren Rijiju has written to Chief Justice of India D Y Chandrachud “suggesting” the inclusion of a government nominee in the decision-making process for shortlisting of judges. Several Opposition parties, however, criticised the Government for what they said was an attempt to “intimidate and thereafter capture” the judiciary.
Pointing out that the Memorandum of Procedure regarding the appointment of judges was still “pending finalisation”, Rijiju’s letter gave “suggestions on how best it can be streamlined”, sources told The Indian Express.
Sources said the communication is only part of “an ongoing dialogue” between the Government and the court regarding appointments and that it is yet to be discussed by the Collegium.
Opposition parties — from Congress to AAP, RJD, DMK and the Left — said the Government had a “larger plan to intimidate the judiciary”. “The Vice President’s assaults, the Law Minister’s attacks — 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. Its remedy is a poison pill for an independent judiciary,” Congress communication head Jairam Ramesh told The Indian Express.
According to sources, the key suggestion in Rijiju’s letter is that the “search and evaluation committee” for High Court judges should include a nominee of the Central and respective state governments while that for shortlisting judges for the Supreme Court and Chief Justices of High Courts should include a nominee of the Centre, the sources said.
The committee will, in turn, make its recommendations to the High Court or Supreme Court Collegium as the case may be, the letter suggested. The final decision will still vest with the Collegium. At present, the names are vetted by the Collegium, either of the High Courts or the Supreme Court, which comprises senior judges.
Tweak in selection
The SC Collegium comprises the CJI and four most senior judges of the court. The High Court Collegium comprises the Chief Justice of the High Court and two most senior judges of that court. Names for judgeship are vetted by the Collegium. Rijiju’s suggestion will give the Centre and states a say in the selection of judges for higher courts.
The Congress, meanwhile, referred to Vice President Jagdeep Dhankhar’s recent criticism of the Supreme Court, for striking down the National Judicial Appointments Commission Act (NJAC), and reference to the basic structure of the Constitution.
“Even if the Supreme Court would want to accommodate the Central Government’s desire, how would they do so if the Memorandum of Procedure does not have space for such accommodation. Then the moot question is why only a representative of the Government alone ?” Lok Sabha MP and Congress leader Manish Tewari told The Indian Express.
CPI general secretary D Raja said “there is some kind of attempt by the Government to exert pressure on the judiciary to make it succumb to them and not to remain neutral and uphold the constitutional morality”.
DMK’s Rajya Sabha P Wilson said the Government “cannot interfere with the functioning of the judiciary”.
Rijiju’s letter comes after the hearing on January 6 in the Supreme Court on a plea by the Advocates Association Bengaluru seeking contempt proceedings against the Centre for delaying the appointment of judges to the Karnataka High Court despite recommendations by the Collegium.
During that hearing, a bench presided by Justice S K Kaul had expressed “extreme concern” over the 10 recommendations for transfer of High Court judges pending with the Government and said it “sends a very wrong signal that other factors are coming into play”. On that day, the Centre assured the bench that “all efforts are being made to conform to timelines”.
The bench headed by Justice Kaul, who is a member of the Supreme Court Collegium, had earlier decided to proceed with the issue on the judicial side, marking a break with the past when matters concerning appointment of judges were taken up by the Supreme Court mostly on its administrative side.
On November 11 last year, hearing the Bengaluru plea, the bench had said that “keeping names pending is not acceptable”. The Government has since responded in equal measure through the Law Minister; Vice President Dhankhar later joined the issue.
Apparently responding to the November 11 comments, the Law Minister, while speaking at the Times Now Summit 2022 later that month, had 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…” He described the Collegium system as “alien” to the Constitution.
Following Rijiju’s remarks, Justice Kaul, hearing the Bengaluru plea on November 28, said, “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. All I can say is, should not have happened.” The judge did not take any names.
Then came comments by the Vice President who criticised the apex court for striking down in 2015 the law to set up an NJAC for appointing judges. Presiding over Rajya Sabha on December 7 last year, Dhankhar called the striking down of the NJAC Act a “severe compromise” of Parliamentary sovereignty and disregard of the “mandate of the people”.
A day later, when the Bengaluru plea came up for hearing again, Supreme Court Bar Association president Senior Advocate Vikas Singh told the court that “persons in constitutional posts were saying SC does not have the power to exercise judicial review”. Justice Kaul too, without taking names, responded, “Tomorrow people will say the basic structure is not part of the Constitution”.
Last week, the Vice President cited 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. In this context, Dhankar said it will be difficult to answer the question “are we a democratic nation”.
