The story so far: A major confrontation is on between the Union government and the Supreme Court over the former’s resentment towards the Collegium system of appointments and its push to have a dominant say in judicial appointments and transfers. The government has also started airing its grievance against the invalidation of the National Judicial Appointments Commission (NJAC) by the court in 2015. The current round of conflict has two triggers. One is the government’s repeated public criticism of the Collegium system on the ground that it is “opaque”. The other concerns a ping-pong battle between the Collegium and the government over the names being recommended and reiterated for appointment in constitutional courts.
On October 17, Law Minister Kiren Rijiju shot a salvo at the Supreme Court Collegium, saying they were “preoccupied” with making judicial appointments when their primary job is delivering justice. Mr. Rijiju’s comments came at the fag end of the 49th Chief Justice of India N.V. Ramana’s tenure, which saw the Collegium recommend 363 names for High Court judgeships and 11 names for the Supreme Court. On November 6, Mr. Rijiju complained again on the lack of accountability of the Collegium system and made references to the court striking down the NJAC law, which gave the government an equal say in appointments, in October 2015. His criticism coincided with Justice D.Y. Chandrachud taking over as top judge on November 9 for a two-year tenure.
Meanwhile, on November 17, Chief Justice Chandrachud agreed to list in due course a writ petition to reconsider the Collegium system. The SC also began its counter-offensive with the CJI advising that the Collegium and the government should work with a sense of “constitutional statesmanship” rather than find fault with each other. On the judicial side, a Bench led by Justice Sanjay Kishan Kaul took cognisance of the government sitting on Collegium recommendations for years together for “undisclosed reasons”. It later went on to link the government’s willingness to “cross some Rubicons” and take on the judiciary by delaying Collegium recommendations to the quashing of the NJAC mechanism.
But the same evening, there were media reports that the government had returned 20 names recommended by the Collegium for High Court judgeships. A few days later, Vice-President Jagdeep Dhankar remarked that a law — without specifically naming the NJAC — passed by Parliament and expressing the will of the people had been “undone” by the court disregarding parliamentary sovereignty.
On December 8, Justice Kaul’s Bench said nobody was stopping the government from bringing a new law on judicial appointments, but till then the Collegium system and its Memorandum of Procedure (MoP) was the “final word”. The Court said that even if a law was enacted in the future, its constitutionality would be duly scrutinised by the Supreme Court.
The parliamentary standing committee on Law and Personnel led by senior BJP leader Sushil Kumar Modi in its report said both the judiciary and the government need to do some “out-of-the-box” thinking to deal with the “perennial” judicial vacancies in High Courts. It said that both institutions were not adhering to the timeline given in the Second Judges case and the MoP.
The procedure for appointment of judges to the Supreme Court and the High Courts, in accordance with the Collegium system, was laid down in the MoP prepared in 1998. It states that the initiation of a proposal for appointment of Supreme Court judges vested with the CJI and that of High Court judges with the Chief Justice of the High Courts concerned. The MoP required the Chief Justices of High Courts to initiate the proposals six months prior to vacancies. The Constitution (99th Amendment) Act was passed by Parliament to provide for a National Judicial Commission, which was duly formed by the NJAC Act. On October 12, 2015, the court struck down the NJAC Act and the Constitution Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. However, the court said the 21-year-old Collegium system needed a re-look. The court directed the government to finalise a revised MoP in consultation with the CJI and the Collegium. A revised MoP was sent to the CJI by the government on March 22, 2016 for the response of the Collegium.
The Collegium responded with its own revisions on May 25 and July 7 of 2016. There was an additional round of consultation when the government responded to these revisions on August 3, 2016 to which the Collegium sent back comments on March 13, 2017. Incidentally, the government, after a gap of three months, wrote to the Chief Justice of India on July 4, 2017, drawing the latter’s attention to the court’s own judgment in a suo motu contempt case against Calcutta High Court judge, Justice C.S. Karnan, who was sentenced to six months’ imprisonment. Two judges on the Bench, Justices Ranjan Gogoi and J. Chelameswar, had observed that the appointment of Mr. Karnan revealed loopholes in the Collegium system and laid bare the lacunae in making a correct “assessment of the personality” at the time of elevation of people to the Bench. The court did not respond to the letter, according to the government. The Centre said it would finalise the MoP only after receiving inputs from the Supreme Court.
The Centre argues that the Collegiums, both at the Supreme Court and High Court levels, are delaying judicial appointments. The NJAC was a good law thwarted by the court.
It says that the High Courts are not making recommendations six months in advance of a vacancy. As on November 30, 2022, there are 332 judicial vacancies in the High Courts out of a total sanctioned strength of 1,108 judges. The High Courts have made 146 (44%) recommendations which are under consideration of the government and the Supreme Court. The High Courts are required to make recommendations for the remaining 186 vacancies (56%). Many High Courts have not made recommendations under the Bar and Service quotas for vacancies in the past one to five years. It said 43 High Court judges are scheduled to retire between December 1, 2022 and May 31, 2023, taking the vacancies up to 229. So far, no recommendations have been received.
The government has complained that the Supreme Court rejects 25% names recommended by the High Courts for judgeships. While making 165 appointments during 2022, 221 recommendations made by the High Courts were processed. The remaining 56 proposals were rejected by the Supreme Court Collegium. Sixty-six fresh proposals of names for judgeships are pending Intelligence Bureau inputs. The delay in the appointment process has affected the timely filling up of vacancies in the High Courts. The Supreme Court itself has six vacancies. Justice Dipankar Datta, whose recommendation was pending with the government for nearly three months, was sworn in as the 28th judge of the Supreme court on December 12.
The court said the Collegium system, combined with the MoP, is the law as it exists now. The government has either kept Collegium recommendations pending for no apparent reason or it has repeatedly sent back names reiterated by the Collegium. The court accused the government of not appointing persons who are not “palatable” to it.