GS Paper 2
Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary
Direction: The article attempts to explain the MoP for the appointment of judges to the higher judiciary, as well as the Law Minister’s suggestion to reform the collegium.
Context: The Union Minister for Law and Justice has written to the CJI suggesting that a nominee of the government should be included in the collegium that makes recommendations for the appointment of judges.
Background: The suggestion to the CJI comes in the backdrop of –
- An ongoing tussle between the government and the judiciary on the issue of the appointment of judges.
- A Memorandum of Procedure (MoP) is pending finalisation.
What is the MOP?
- It is the official playbook agreed upon by the government and the judiciary and governs the collegium system of appointing judges.
- Since the collegium system evolved through a series of SC rulings (First (1981), Second (1993) and Third (1998) Judges Cases), the MoP is the bedrock of the process of appointments.
- The MoP was sought to be re-negotiated after the SC struck down (4:1) 2015 the National Judicial Appointments Commission (NJAC).
- Draft MoPs, which include eligibility criteria, a new secretariat and a mechanism to deal with complaints against proposed candidates, were exchanged during 2015-17.
The bone of contention in the MoP and SC’s take on the appointment process:
- The insertion of a “national security” clause that may prevent an appointment was a major point of contention.
- However, before the document could be finalised, the SC in a 2017 judgement (a suo motu contempt proceeding against Justice C S Karnan, then a judge of the Calcutta HC) highlights,
- The need to revisit the process of selection and appointment of judges to the constitutional courts.
- The necessity to establish an effective legal regime to deal with situations where the conduct of a constitutional court judge necessitates remedial actions (other than impeachment).
- The SC has initiated a contempt case against the government for not adhering to the timelines set out in the MoP and court rulings.
- The MoP is under finalisation by the Government in consultation with the SC Collegium.
- The Parliamentary Standing Committee on Law and Justice voiced concern, given that the MoP had been pending for more than seven years.
What does the Law Minister’s suggestion imply?
- Government representatives should be a part of the SC (CJI and four senior-most judges of the apex court) and HC (Chief Justice and two senior-most judges of a particular HC) Collegiums.
- A departure from the NJAC
The opposition to the suggestion:
- This remedy is a poison pill for an independent judiciary.
- A representative of the Government alone attacks not only the independence of the judiciary but also the competitive balance between the ruling party and the opposition.