The controversy surrounding the elevation of Uttarakhand Chief Justice KM Joseph to the Supreme Court reflects the rift between the executive and judiciary over judicial appointments, an issue that often turns into a turf war between the two key pillars of democracy.
The collegium system that gives sweeping powers to a group of senior-most judges of the apex court in the appointment of judges, has often been criticised for being opaque, arbitrary and incestuous. Though differences over the appointment of judges to the apex court are not new, the prevailing divisive atmosphere has added a worrying dimension to the issue.
Earlier, Vice-President M Venkaiah Naidu had turned down an impeachment motion against Chief Justice of India Dipak Misra while four senior judges revolted against the CJI and questioned his allocation of cases with far-reaching consequences to junior judges and benches.
It is time the Supreme Court rose up to the 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 society has made the collegium system vulnerable to government’s intervention.
While independence of the 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. There has been a prolonged standoff between the government and the judiciary over the issue of appointment of judges.
This friction appeared to turn into a turf war after the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional in 2015. The Commission was proposed as a replacement for the five-member collegium.
The inclusion of the law minister and two ‘eminent persons’, who would be nominated by the Chief Justice, the Prime Minister and the leader of the Opposition in the Lok Sabha in the proposed Commission had become a bone of contention.
Though the idea was part of broader judicial reforms to make appointments to the higher judiciary more transparent, the apex court saw it as an attempt to encroach its domain. However, there is a valid ground for demystifying the functioning of the collegium system.
Its decisions have always been closely-guarded secrets and beyond public scrutiny and the purview of the Right to Information Act. India must evolve a new system to appoint judges as the collegium system raises troubling questions on transparency in the appointment process.
The new system should aim at ensuring independence, diversity, professional competence and integrity. The executive and judiciary need to work closely, in an atmosphere of mutual respect, to revisit the existing system and put in place a transparent and participatory procedure. The proposal for an independent broad-based constitutional body for judicial appointments deserves consideration.