Editorial: Find mid-way on judges' appointment

FPJ EditorialUpdated: Sunday, January 22, 2023, 09:51 PM IST
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Supreme Court of India | File

Though differences between the Supreme Court and the Government over senior judicial appointments are not new, these have acquired a sharp stridency in recent days following the elevation of Justice D Y Chandrachud as CJI. A public spat between the two does not become the Republic, whose institutional sanctity relies critically on the conduct of men and women occupying high constitutional offices. Unfortunately, the to-and fro between the SC collegium and Government leaders threatens to blow up into a full-fledged confrontation. It is therefore of utmost importance that the two pull back from the brink and try and evolve a compromise which best serves the interests of the Republic without either undermining the independence of the judiciary or eroding — a wee bit — the role of the Government as originally envisaged in the Constitution in judicial appointments. Giving one side the virtual veto will be violative of the founding charter and needs to be abandoned in favour of a golden compromise as provided in the National Judicial Appointments Commission.

It is wrong of the Opposition parties, especially the Congress, to oppose the NJAC now merely because it embarrasses the ruling party. Such an opportunistic approach on a key Constitutional matter shows the Congress in poor light. After all, it had taken the lead in piloting the NJAC law while in power when the current rulers were in the Opposition but had the good sense to support the law. Rejecting the NJAC as the Supreme Court did in 2015 was a negation of the unanimous will of the people. It is thus for the CJI to appreciate the sentiment behind the NJAC and come forward to meet the executive half-way by agreeing to form a five-member committee for the selection of SC and HC judges. Judges appointing judges is plain wrong and creates a branch of the constitutional system which is uninformed by any democratic element. The Opposition and the wider commentariat ought to refrain from opposing the NJAC due to their opposition to the current regime. They should instead consider the NJAC on its own merits. The process provided therein for appointments of judges is eminently fair and equitable. The NJAC was a five-member body with the CJI serving as the ex-officio chairman and two senior SC judges as ex officio members along with two eminent members from civil society, one to be nominated by a committee consisting of the CJI, PM and the leader of the Opposition and the other to be nominated from the SC/ST/OBC communities or women. In other words, even in the five-member selection committee judges would have a 3:2 majority.

But such was the judicial arrogance that the SC would not brook any role for the executive in judicial appointments, virtually creating an isolation chamber for themselves. In such a closed-door affair the only way the Government had was to dig out dirt, if any, against the nominees of the SC collegium and intimate it. It was then left to the collegium what to make of the rejection or acceptance of the Government. Should it still persist with the recommendation, the Government was obliged to notify the appointment. If this is not a one-sided process it is hard to say what is one-sided. The irony is that the Government itself forfeited the dominant role in judicial appointments by abusing the system in the early years of the Republic. It inflicted much damage by appointing many unworthy lawyers as judges. Over time, this allowed the judges to slowly alter the process of appointments through three different judges’ cases at the end of which it acquired a near-absolute power to make judicial appointments. It is this shift in the judicial-government equation in the matter of appointments that the NJAC had set out to correct with a rare unanimity in Parliament. Now, whether the latest round of statements by the high dignitaries are meant to browbeat the judiciary following the elevation of Justice Chandrachud, and reflect a certain unease at what he might do, is not clear. But it is plain that unless good sense prevails on both sides and a compromise is reached on the five-member NJAC committee a judiciary-government collision might become unavoidable. This dreaded denouement will do neither institution any good. The judicial and government branches cannot be at loggerheads permanently. The two must talk with each other for preserving the sanctity of the Constitution.

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