The issue of appointment of judges for some time has been a bone of contention between the judiciary and executive. The recent accusation of the Chief Justice of India (CJI) against government for delaying appointment has strained the relation between two even more. Later, a contempt of court notice against secretaries in PMO and department of justice was also contemplated by the CJI before being assured by Attorney General for action before next hearing. As a result, even though the appointment of 10 Delhi and Guwahati High Court judges was then cleared by the government, the debate regarding the process of appointment of judges with the revised Memorandum of Procedure (MOP) continues as the government and SC collegium failed to reach any consensus.
Causes of Conflict
With both parties wanting to keep the power of judicial appointment to higher judiciary to themself, they have been engaged in a struggle of power of sorts and game of oneupmanship.
Despite both parties claiming to make appointment on the basis of merit to make judiciary more efficient and accountable, it is surprising that no consensus has been made until now.
Even when there is no better way to reach an amicable solution via dialogues, the two sides are maintaining status quo by not meeting in this regard.
The tussle between the two started with the 1993 judgement that formed the collegium system to appoint the judges of higher judiciary, a power that was earlier enjoyed by the Executive before the above-mentioned judgement. Even after the SC asking the government to frame the memorandum of procedure, it is stuck for last 10 months as the executive and judiciary have been at loggerheads.
The issue of merit has been the centre of debate. It is sought that the candidate should be eligible as per the requirement and the data of the same have to be made public. This is where problem arises. The disagreement is about induction on both sides of people who may not ultimately prove to be not worthy of selection for a constitutional post.
The present tussle aggravated after the National Judicial Appointments Commission (NJAC) judgement, which was not taken well by the government. Hence, any amicable solution is far from reaching in the near future.
Acknowledging that there were many loopholes in the procedure of the collegium after the NJAC judgement. The SC after having detailed hearings on procedures left it on the government to come out with new MOP. Now, government continues to sit on appointments as the SC did not clarify that until the new MOP was put in place, the old memorandum would continue. Confronting the government’s action, the CJI rightly asked, if this was the reason, how government has been clearing appointments piecemeal. Either it did not clear any appointments or come back to court and say it cannot clear appointments until new MOP in place. The present appointments give the impression that government is selectively appointing judges.
It is to be noted that deadlock of 10 months will delay the process further. Hence, it is the duty of the court to find a solution quickly to frame a proper MOP. If deadlock continues further, it is the court’s responsibility to help both parties settle the difference and come out with a framework that fits all
Confrontation and Its Development
In democracy, cosy relations between judiciary and executive pose a challenge as the bond can influence the decisions. The issue of distrust in appointment of judges came to fore in the early 1970s when Indira Gandhi hoped for committed judiciary, committed press and committed bureaucracy. That distrust further deteriorated during the time of emergency. Later, in a quest to ponder over the issue, super session of judges came to the understanding that obliging and convenient judges are wanted by the executive so that they can amend constitution as per their convenience. Informed about the loopholes, the SC has made it clear that essential core of constitutional cannot be amended even by majority, and appointment of judges is one of it.
The issue of attaining the supremacy on the appointment of judges has made this an even bigger debate as both the parties fear of loosing their authority to each other: on the one hand, the judiciary feels that executive may interfere in judicial process; on the other hand, the executive fears that judiciary is overstepping its limit.
Judiciary and Executive
The clash between these is not that of personalities, and the constitutional scheme itself defines this kind of difference in their relationship. The executive is vested with all the powers to make policy, execute it and hold the perks. On the other hand, judiciary plays the role of watchdog to keep a check on what executive does. Being checked or scrutinised is not liked by anyone unless one is staunch follower of the constitutional schemes. Just as bureaucrats do not take judicial orders in good taste because the same upset their plans, also no political class takes it well when its policy is upset by a judicial review.
The instances of political class retracting from any issue where it was important to take a stand lead to judiciary’s ‘sense of self-importance’ which is sometimes perceived as being possessed by the judiciary. Instead, the political class decided to take a back seat and let the court take a decision, subsequently resulting in the growing stature and importance of Judiciary.
As the problem is inbuilt in the institution, it is important for proper functioning of democracy that both executive and judiciary should have professional faith in each other to effectively avoid confrontations on petty matters.
In addition, they both have a common goal to work for the system which is law of land by not getting engaged in the blame game and daily battle through media.
The power of appointment has a certain element of patronage in system. There can be merit but the power of appointment has certain political connotation. It can be used in wider sense like use of power in university, judge’s decision or political process.
As the real issue, how judges are appointed and whether there is transparency or not, got lost amid other controversies and debates, consensus seems to be difficult to attain in the near future. It is yet to be decided whether the judge be appointed under NJAC system is declared unconstitutional by SC and constitutional under collegium system. In both cases, there is no surety of transparency. It is needed that SC should ensure there is transparency. There are opinions coming from within the judiciary about lack of transparency in the functioning of collegium system. Sans transparency, desired results will not be achieved.
Transparency in appointment and established procedures should be the primary aim of the judiciary. Lack of proper systems is causing problems for the judiciary in managing functions like time management, docket management, etc. And the time has come to rope in management expert to handle such functions. Just as highlevel appointing bodies lay down their procedures, also there should be some defined procedures for the collegium. It is the fact that judiciary has failed to establish above procedures even after they being debatable for many years.