NEW DELHI: The ongoing tussle between the Centre and the Supreme Court has taken a new shift with Union Law Minister Kiren Rijiju writing to the Chief Justice of India, DY Chandrachud suggesting that government representatives be included in judges’ appointment in the Supreme Court Collegium.
The Union law ministry asserted the need to have a search-cum-evaluation committee (SEC) supreme court for bringing in more transparency and objectivity in the process of judicial appointment through the collegium system.
In his letter, Rijiju says that doing so will “infuse transparency and public accountability”, thus further escalating the tensions between the government and judiciary, which broke last year.
The letter is “just a follow-up action of letters written earlier to the Chief Justice”, Rijiju told news agency ANI today, asserting that the Supreme Court constitution bench had talked about a possible restructuring while striking down the National Judicial Appointment Commission (NJAC).
In a letter dated January 6, the Centre underlined that the government is an “important stakeholder in the process of appointment of judges in the Supreme Court and high courts” and therefore, its views should also find a place in preparation of the panel of names who are eligible for being appointed as judges of the constitutional courts.
According to people aware of the matter, the letter stated that a representative of the Union government should be a member of the SEC for appointment of judges in the Supreme Court and chief justices of high courts. The SECs for appointment of judges in the high court should also have a nominee of the state government, as per the letter.
The letter, however, did not ask for government representatives in the collegium itself, as suggested by some media reports.
“SECs will be entrusted to prepare a panel of eligible candidates from which the respective collegiums will make recommendations…the collegium at appropriate level may address the above requirement of drawing up a panel of eligible candidates from above mentioned sources and draw up their proceedings by rendering requisite reasons and thereafter send the proposal to the government with requisite documents,” said the letter.
Referring to its previous missives to the SC collegium in 2017, 2018 and 2021 regarding the SEC, the letter added: “You will appreciate that the structuring of all connected threads, once accomplished, will pave the way for expedition,” stated the government’s letter to the CJI. The collegium in the Supreme Court comprises the CJI and the other four most senior judges of the court.
The government’s letter marks yet another chapter in the ongoing confrontation between the executive and the judiciary over the judges’ selection mechanism and the division of powers between the two. The row, over the last few months, witnessed Vice President Jagdeep Dhankar and Union law minister Kiren Rijiju questioning the collegium system of appointing judges, while the top court responded with stern reminders to the government that the collegium system is the law of the land that must be followed by the government “to a T”.
While there is a department in the Supreme Court to assist the collegium in considering the names, the government, through its January-6 letter has pressed for institutionalising the process by creating a pool of names that will be forwarded to the collegium for finalising the appointments. It has also proposed that other senior judges outside the collegium may also send their recommendations to the SEC concerned.
The letter, according to the people aware of the matter, stressed that the government has repeatedly highlighted the need to have a SEC in its previous suggestions on supplementing the memorandum of procedure (MoP), which guides the appointment of judges in the constitutional courts.
The Union law minister in multiple statements has said that the collegium system is “alien” to the constitution and strongly objected to a system that does not give the government any authority in the appointment of judges. He also criticized the SC for the scrapping of the NJAC set up by the BJP-led government through a law enacted in 2014. The commission would have comprised members of the government and the judiciary and was said to be a threat to the independent functioning of the judiciary.
The two-tiered collegiums are a 25-year-old system through which judges of the Supreme Court appoint judges to the apex court and high courts. At present, the collegium comprises CJI Chandrachud, and Justices S.K. Kaul, K.M. Joseph, M.R. Shah, Ajay Rastogi and Sanjiv Khanna.
As the back and forth between the apex court and law ministry prolongs, the NJAC Act has been in the centre of discussions. Passed by the parliament and quashed by the Supreme Court in 2015, the Act had envisioned two-government representatives in the body that will appoint judges.
Last week, Vice-President Jagdeep Dhankhar launched a fresh attack on the Supreme Court for striking down the law, adding that he did not agree with the restriction imposed by the top court that parliament cannot amend the ‘basic structure’ of the constitution.
A couple of days before that, along with its third reiteration of the recommendation that Nagendra Ramachandra Naik be appointed a judge of the Karnataka high court, the Supreme Court collegium reminded the Union law ministry that the “government is bound to notify an appointment once the collegium’s decision is reaffirmed.”
Meanwhile, reacting to the letter, the Congress accused the government of “intimidating” the judiciary in a bid to “capture” it.
“The VP’s assaults. The Law Minister’s attacks. All this is orchestrated confrontation with the judiciary to intimidate and thereafter capture it totally,”AICC general secretary Jairam Ramesh said on Twitter.
“The Collegium needs reform. But what this Government wants is complete subservience – Its remedy is a poison pill for the judiciary,” he also said.
Justifying the letter to CJI, Law Minister Rijiju said in a tweet, “the contents in the letter to hon’ble CJI are exactly in conformity with the observations and directions of the Supreme Court Constitution Bench.”
“Convenient politics is not advisable, especially in the name of the Judiciary. The Constitution of India is supreme and nobody is above it,” Rijiju also said.
Rijiju made the remarks while responding to Delhi Chief Minister Arvind Kejriwal, who dubbed as “extremely dangerous” the government’s move to ask the Supreme Court to include its nominees in the collegium.
“I hope you honour Court’s direction! This is a precise follow-up action of the direction of the Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP (Memorandum of Procedure) of the collegium system,” Rijiju said on Twitter.
“This is extremely dangerous. There should be absolutely no government interference in judicial appointments,” Kejriwal said on Twitter.