The assertion by Union Law Minister Kiren Rijiju that the current Collegium system of appointing judges was “opaque and not accountable”, has revived the debate on the system of appointment of judges of Supreme Court and high courts.
The minister went on to say that the government would work with the current system till it comes up with an alternative mechanism.
The remarks made by the minister can have deep repercussions particularly in view of the systematic tinkering and downsizing of other institutions by the current government. Judiciary is one such institution which has largely remained independent and has been able to resist efforts to interfere in its functioning.
It has, however, its limitations and the government has been able to hold back some appointments recommended by the collegium of the Supreme Court. The government has even recommended holding back certain appointments reportedly due to adverse reports from intelligence agencies.
Yet, by and large, the judiciary has retained its independence and that is why most people look at it as a last resort for justice.
The same can’t be said about the functioning of other institutions including those enjoying the protection of the constitution. For instance, the appointment of governors is now restricted to persons with a given ideology. In turn they are appointing vice chancellors with the same pattern in view.
Parliament itself has lost its sheen with the government refusing to answer questions from the opposition and hardly any time given for debates and discussions. Even important bills are being passed without any discussions through parliamentary sub committees.
Similarly selection of officers in key posts is now influenced by criteria other than merit. The state of the media, even though it is not a formal pillar of democracy, is well known to all with big business eating into its independence.
Therefore, any indication of the likely government intervention in the functioning of judiciary, including the appointment of judges, can be viewed with suspicion.
The minister added to it by saying that judges are overworked and instead of devoting time for selection of judges they should be adjudicating disputes. He also alleged that a “lot of politics” was involved in the process thereby conceding that this could be a major factor in the government wanting control over appointment of judges.
Supreme Court had struck down the National Judicial Appointments Commission (NJAC) Act in 2015 with valid reasons. It wanted the collegium system to continue but the government is obviously not happy about it.
The legitimacy and power of judiciary rests on the public confidence it commands and the independence of judiciary is the most cherished goal of any democracy. The procedure for appointment of judges is a critical aspect for the independence of judiciary.
A larger government interference in appointment of judges, particularly during the current regime, can spell serious problems of credibility. Senior judges are themselves best suited to know who are capable judges or those from the bar who should be elevated.
This is not to say that the current system is ideal or that there is no chance of favouritism or nepotism. For that matter the government continues to have the final say in the appointments as it is the law minister who has to give his recommendations to the prime minister who, in turn, forwards the recommendations to the President to issue warrants of appointments.
The new Chief Justice of India DY Chandrachud, who took over on Wednesday, has rightly said that no system is perfect but we should make efforts to further improve the system of judicial appointments. At the same time he has cautioned that privacy of the candidates has to be preserved.
It would be in the fitness of things and in the interest of the credibility of judiciary that the capabilities of future judges are evaluated by judges themselves rather than by the government of the day.
Even if the government thinks that an independent and permanent mechanism should be set up for selection of judges, it must keep itself away from the entire process. It is all the more important because governments are themselves litigants in almost 80 per cent of cases in the courts.
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