The government has accepted a parliamentary panel’s recommendation to scrap the present procedure for appointments and transfers of Supreme Court and High Court judges. This move is likely to put the government on a direct confrontation course with the judiciary.
The Law Ministry has agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law & Justice recommended doing away with the committee of judges (collegium). Presently, the collegium decides the appointments and transfers of judges.
Interestingly, the recommendations come close on the heels of recent cases of corruption against judges of the top courts in the country.
Law Minister H.R. Bhardwaj told Hindustan Times that the House committee's recommendation had been accepted, and an action-taken report prepared by the ministry would now be placed before Parliament.
“Collegium system has failed. Its decisions on appointments and transfers lack transparency, and we feel courts are not getting judges on merit. It has become a give-and-take system. The government cannot be a silent spectator on such a serious issue,” Bhardwaj said.
The House committee had said: “Through a Supreme Court judgement in 1993, the judiciary wrested the control of judges’ appointments and transfers. The collegium system has been a disaster and needs to be done away with.”
Bhardwaj said it is the right time to review the important matter.
“There was no problem till 1993 when the judiciary tried to re-write the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged,” he said.
The options available to the government include filing a review petition before the Supreme Court to review its decision or else an amending Article 124 of the Constitution, which deals with judges' appointments, the minister said.
“The government would go for the widest political consensus on this issue. Our argument is based on the Constituion Review Commission's report, headed by former Chief Justice of India M.N. Venkatachaliah. We are also studying other suggestions in this matter,” Bhardwaj said.
The Venkatachaliah commission recommended setting-up of a National Judicial Commission for appointment of judges. It proposed that a committee comprising the Chief Justice, two senior judges, a representative of the government and eminent citizens to decide on judges' appointments.
Appointments and transfers of judges has been a bone of contention between the successive governments and the judiciary.
The judiciary wants to retain its supremacy and is of the firm opinion that the government should simply send the names recommended for appointment to the President for approval. On the other hand, majority view in Parliament is that this system needs to be changed and appointments of judges should be done after consultations between the Chief Justice and the government.
“President of India is the final appointing authority, the collegium wants its recommendation simply to be endorsed, this is not acceptable. The cabinet advice cannot be circumscribed by any recommendation," Bhardwaj said.