The proposal to set up a secretariat manned by retired judges to assist the collegium in the selection of judges must be welcomed as it addresses the judiciary’s concerns over possible unwarranted executive interference in judicial appointments. With almost 40% of over 1,000 posts in 24 high courts lying vacant, judicial appointments have been in a gridlock for almost two years while the government and the judiciary have been trying to sort out their differences over the memorandum of procedure for judges’ appointments.
The issue of judicial appointments has been controversial in India since the supersession of three Supreme Court judges — JM Shelat, KS Hegde, and AN Grover in April 1973 by the Indira Gandhi government which appointed Justice AN Ray as Chief Justice of India. Faced with supersession, punitive transfers and threats to judicial independence, the Supreme Court staged a judicial coup of sorts in 1993. It wrested power of judicial appointments from the executive through what came to be known as the ‘collegium system’ — making India the only country where judges appoint judges.
Initially hailed as an antidote to unwarranted executive interference in judicial appointments, the collegium system soon degenerated into a ‘give and take’ system. Following serious complaints about the functioning of the secretive collegium system, Parliament enacted the National Judicial Appointments Commission (NJAC) in August 2014 with complete political unanimity.
After the Supreme Court scrapped the NJAC in October 2015 in the name of judicial independence, the extra-constitutional collegium system is back. The government has been working to draft a memorandum of procedure as desired by the court. But unfortunately government and judiciary have not been able to sort out their differences over it. There are allegations that the government wants to achieve through the memorandum of procedure what it could not with the NJAC.
Earlier, certain other points suggested by the executive, including a clause on national security, for incorporating in the memorandum of procedure, had been rejected by the collegium. Now that it has been proposed that retired judges would be a part of the secretariat that would screen candidates to be considered for appointment as judges of the Supreme Court and high courts, it should be acceptable to the judiciary. As far as complaints against sitting judges are concerned, this will need a completely different mechanism.