The appointment of a new Chief Justice always offers us an opportunity to look beyond immediate happenings. If used judiciously, the time lag between appointment and taking oath can be used to sort out lingering issues in the system. Justice Chandrachud’s appointment seems to be the moment for the executive to air its view on the Collegium system and the changes required in it.
Kiren Rijiju on Collegium system
The Law Minister, Kiren Rijiju, is leaving no stone unturned in reminding the Judiciary of the executive’s perception of the Collegium system. He unequivocally says that the government should have a say in the appointment of judges. Shri Rijiju has cited the spirit of the Constitution to vindicate his points. Recently, he expressed his views at ‘Sabarmati Samvad’, organised by ‘Panchjanya’, a weekly magazine published by the RSS. According to Shri Rijiju, the people of the country are not happy with the Collegium system.
Quote “I am aware that the people of the country are not happy with the collegium system of appointment of judges. If we go by the spirit of the Constitution, appointing judges is the job of the government,”. On the occasion, Shri Rijiju also launched a scathing attack on nepotism in Judiciary and the way in which Collegium is affecting Judiciary’s efficiency. Citing his experience as Law Minister, Kiren Rijiju observed, “Second thing, nowhere in the world except India is there a practice that judges appoint their brothers as judges. Third, as the Law minister, I have observed that half of the time and minds of judges are preoccupied with deciding who will be the next judge. Their primary work is to give justice, which suffers due to this practice.”
Also read: Kiren Rijiju talks about doing away with the collegium system in the Judiciary
Concern on activism in Judiciary
He also shredded the common belief that judges should not be liable for their opinions. Rijiju does seem to agree with the notion that judges’ judgements should not always be taken out of context and criticised. However, he drew the line by stating that if the judge is involved in administrative work, then criticism and disagreements are part of the process. By ‘administrative work,’ he mainly meant the appointment of judges through the Collegium system.
Speaking on the activism spreading like a virus in the legal system, Shri Rijiju appealed to honourable judges to stick to the rule book of jotting down their words. In what seemed to be a reference to the controversial rebuking of Nupur Sharma through unwritten words, Shri Rijiju said, “Several judges pass observations which never become part of the judgement. During my consultations with them, I have requested that they refrain from it, especially when live streaming of court proceedings is taking place. They are being judged by the people. As a judge, you might not know the practical difficulties or even financial implications of the order you pass.”
Ever since the Modi government took an oath to serve 1.4 billion Indians, independence of Judiciary has been a thorny issue in power corridors. Its genesis actually lies in the Emergency era. That period was the first time in the history of independent India that the credibility of Judiciary had to be checked in the witness box named “people’s opinion”. As the credibility took a hit, so did the process of appointment of Judges at SC and HCs.
Also read: “Lakshman Rekha must not be crossed,” Kiren Rijiju’s subtle message to the Judiciary
Evolution of process of appointment of Judges
Our Constitution has well laid out provisions for appointment of SC Judges. Article 124 (2) of the Constitution makes it compulsory for the President to appoint SC Judges including Chief Justice. He or She has to do it through consultation with such of the Judges of the Supreme Court and of the High Courts in the States.
In practicality, Chief Justice of India used to recommend Judges and the President’s job normally remained limited to stamping it till 1980. And then came ‘First Judges Case’ of 1981. In S P Gupta Vs Union of India, the Court said that the President can turn down CJI’s recommendation for ‘cogent reasons’. The system continued for 12 years but by and large Presidents refrained from much interference in the process.
Even that was not acceptable to the Judiciary. In the Second Judges Case of 1993, Supreme Court held that “Consultation” means “Concurrence”. Basically, the Court said that the Judiciary’s opinion on the process holds more weight. SC added that apart from CJI, two senior-most judges in the SC will also be part of the process. This gave birth to the collegium system. 3 years later, in ‘Third Judges Case’ SC ruled that the Collegium had to be a 5-member body comprising CJI and four of his senior-most colleagues.
Also read: Kiren Rijiju takes Nehru out of the history books, bashes him up and then puts him right back
Judiciary just does not want Executive
In other words, the voice of the Executive was pinned to just a stamp. The only power the executive had was to take the matter to the People’s Court by dissenting on the opinion. Even that would ultimately achieve nothing of substance. It is not that the government did not try to change it.
The Modi government introduced the Ninety-Ninth Constitutional Amendment Act of 2014. The Act of 2014, provided for the National Judicial Appointment Commission (NJAC). It had to replace the existing Collegium system. In the new system, the government took care of the basic structure of the Collegium system by giving upper hand to Judiciary through Chief Justice as Chairman and 2 senior most Judges of the SC.
The 4th member of NJAC was proposed to be Union Law Minister, who represents Judiciary. Government was also diligent enough to ensure that the people of the country also become part of the process by making way for participation of 2 imminent citizens.
To ensure that appointment of imminent individuals takes place through free and fair mechanism, Judiciary was given its say in this process as well. Both imminent citizens were slated to be appointed by a Committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of Opposition (LoO) in the House of the People.
Even that was not enough for Judiciary. Striking down the proposed act as Unconstitutional, SC observed that the system does not provide adequate representation of judiciary to ensure PRIMACY of the judiciary. According to the Court, it violated the basic structure of the Constitution. The judgement also reinstated the older collegium system.
Segregated clubs are bad for democracy
Continuous NO by Judiciary to executive’s involvement in the appointment process clearly indicates that it does not trust the executive. Part of it is logical as well since general perception around politicians is that they tilt towards popular demands, rather than logic. But Hey, which system is free from its own confirmation bias?
That is when checks and balances come to the rescue of the system. Not allowing it to be part of the system is not good for any branch of Democracy.
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