The turf war between the executive and judiciary over appointment of judges will do no good to either of the two pillars of democracy. If not resolved amicably, the fresh bout of confrontation over the elevation of Uttarakhand High Court Chief Justice KM Joseph as a judge of the apex court has the potential to erode public faith in the independence of the judiciary. A matured and balanced approach is needed from both sides to sort out the thorny issue. The Supreme Court collegium’s unanimous decision to reiterate the recommendation for Joseph’s elevation is widely seen as a clear rebuff to the central government which had returned the name for reconsideration. With the five-member collegium of senior most judges, including Chief Justice Dipak Misra, putting its foot down on its choice, the government will now be forced to endorse the recommendation. The face-off between the two key pillars of Indian democracy must be avoided at any cost. The critics sought to attribute the NDA government’s objection to Joseph’s elevation to his 2016 decision to overturn President’s rule imposed by the Centre in Uttarakhand. It would be unfair to draw such conclusions because Justice JS Khehar who headed the Constitution bench which struck down the National Judicial Appointments Commission had gone on to become Chief Justice of India. In order to soften the impact of the stand-off, the collegium is set to recommend some more names of Chief Justices of High Courts for elevation as judges of the Supreme Court.
The collegium system, that gives sweeping powers to a group of senior most judges of the apex court in the appointment of judges, is rightly criticised for being opaque, arbitrary and incestuous. Though differences over appointment of judges to the apex court are not new, the prevailing divisive atmosphere has added a worrying dimension to the issue. The revolt by four senior judges over allotment of judicial work and the Congress’ bid to impeach the CJI has vitiated the atmosphere. The Supreme Court is grappling with a challenge confronting its credibility as an independent institution. The absence of transparent criteria pertaining to seniority, merit and due representation to different regions and sections of the society has made the collegium system vulnerable to government’s intervention. While independence of judiciary is non-negotiable for a healthy democracy, there is, however, a strong case for making the process of appointment of judges more transparent and inclusive. The turf war had only intensified after the apex court struck down the National Judicial Appointments Commission, proposed as a replacement for the collegiums, as unconstitutional in 2015. Though the idea was part of broader judicial reforms, the apex court saw it as an attempt to encroach its domain.