The year 2022 witnessed an extraordinary battle of words between the executive and the judiciary. While the government functionaries went after the collegium system of appointing judges, the Supreme Court judges called out the “unhappiness” of the government over its legislation, which promised a greater role for the executive in judicial appointments, failing the test of constitutionality in 2015.
The exchange began merely a few days before justice Dhananjaya Y Chandrachud was slated to take over as the Chief Justice of India (CJI) on November 9. Spearheading the attack on behalf of the government, Union law minister Kiren Rijiju said on October 17 that judges spend half their time in deciding who to appoint as judges, instead of delivering justice. He termed the collegium system “opaque” and described the Indian selection system as the only one where judges appoint judges.
Again, on November 4, Rijiju criticised the collegium system, saying it is “opaque, not accountable and non-transparent”, adding that it is the duty of the minister concerned to speak about the ills of such a selection mechanism. At another public event in the same month, Rijiju spoke of the collegium system in a similar fashion.
A week later, the Supreme Court had its first retort when it took on the judicial side in a case relating to delays by the government in clearing the names approved by the collegium. It said there are “enough checks and balances” before the collegium recommends names for appointments and thus, the endless hold-up by the Centre in clearing names is “not acceptable”.
{{/usCountry}}A week later, the Supreme Court had its first retort when it took on the judicial side in a case relating to delays by the government in clearing the names approved by the collegium. It said there are “enough checks and balances” before the collegium recommends names for appointments and thus, the endless hold-up by the Centre in clearing names is “not acceptable”.
{{/usCountry}}On November 25, CJI Chandrachud tacitly called for a restraint by both sides. Speaking at a function to celebrate the Constitution Day, the CJI, who also heads the collegium in the top court, stressed on the need for “constitutional statesmanship” between the Union government and the apex court, saying that the two institutions cannot keep finding fault with each other in matters of judicial appointments. The CJI appealed for “harmony” and “balance” as he remained emphatic that the collegium does a lot of homework before names are sent to the government for notifying appointments.
Two days later, a bench led by justice Sanjay Kishan Kaul unambiguously disapproved of Rijiju’s public stance on the collegium, asserting that the Centre is bound to “observe the law of the land” and cannot “frustrate the entire system” just because it remains “unhappy” about its law seeking to replace the collegium with a National Judicial Appointments Commission (NJAC) getting quashed in 2015.
On December 2, another Supreme Court bench led by justice MR Shah called the top court the “most transparent institution” and said that the collegium system cannot be derailed.
Throwing his hat in the ring, Vice President Jagdeep Dhankhar also waded into the controversy as he delivered his opening address after assuming the office of Rajya Sabha Chairperson on December 7. Dhankhar said the Supreme Court’s 2015 judgment striking down the National Judicial Appointments Commission (NJAC) Act was a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”.
A day later, when justice Kaul-led bench took up the matter relating to the judicial appointments, it minced no words. The Union government is bound to follow the collegium system “to a T” because that is the law of the land, the bench observed on December 8, adding there will be a “breakdown” and an “infinite battle” if everyone starts choosing which law to follow. During the hearing, the top court also took cognisance of statements made by certain “government functionaries” criticising the collegium system, and asked attorney general R Venkataramani to “advise them” to “exercise control”.
Meanwhile, a note submitted by the AG in the court on that day complained against ascribing the entire blame to the government for delays in appointing judges, asserting that the high courts and collegium must also assume a part of the role in massive vacancies lying across the 25 high courts in the country.
Opening another front in the ongoing tussle, Rijiju again aimed at the collegium system when he spoke in Parliament on December 15. The minister said that the issue of vacancies and appointments in the higher judiciary would remain a challenge till the time a new system of appointments is created, as he advised that the Supreme Court should not hear bail pleas at a time when the pendency of cases is so high.
It did not take long for the top court to reply yet again. On December 18, a bench led by CJI Chandrachud underscored that the Supreme Court exists to answer the cry of the citizens whose liberties have been taken away and thus, no case is small for the highest court of the land. Ordering for immediate release of a man sentenced to a total of 18 years in jail under nine separate cases of electricity theft, the apex court held that it “performs a plain constitutional duty, obligation and function” in attending to all the grievances that come before it.
Meanwhile, the collegium on December 13 sent a fresh set of recommendations of five names for the Supreme Court judges, following the government’s belated notification appointing justice Dipankar Datta as a top court judge. The government sat over justice Datta’s name for more than two months before notifying his elevation.
Justice Datta’s appointment seems an apparent shift in the fight over the weeks the judges’ selection mechanism. But the tug of war between the executive and the judiciary appears to be far from over. It has been weeks and the appointment of the new Supreme Court judges are yet to come through. Several old recommendations, including the one to appoint an openly gay senior advocate as a high court judge, remain in limbo too. The coming weeks, or perhaps months, will vouch whether the government’s stance was just another tool to negotiate with the collegium or that it was testing the waters for a new law on judicial appointments.