Centre still in no mood to back down on issue of judicial appointments

The recent spat between the centre and the judiciary is now on issue of appointment of an Additional Judge at the Patna HC

Ever since the Supreme Court struck down the National Judicial Appointments Commission (NJAC) in October of last year, the government and the judiciary have been at loggerheads on the issue of appointment of judges to the constitutional courts of the country. 

The government had instituted the NJAC in an attempt to replace the pre-existing collegium system of judicial appointments. After much deliberation on the issue, the constitutional bench headed by Justice J S Khehar finally invalidated the Commission, while directing the government to formulate a Memorandum of Procedure (MoP) in consultation with the Chief Justice of India (CJI).

The recent spat between the centre and the judiciary is now on issue of appointment of an Additional Judge at the Patna High Court. In an unprecedented move, the government has rejected the proposed appointment for a second time even after the collegium had reiterated its former stance. 

The recommendation had first been made in 2013, prior to the formation of the NJAC. After the Commission was eventually struck down, the government looked at the recommendation once again but finally sent the file back to the CJI for reconsideration based on an adverse Intelligence Bureau report. The collegium responded by once again reiterating its stance but the government, going against all established conventions of the system has nonetheless rejected the appointment yet again.

This latest move by the centre has added to the already existing controversy regarding the formation of the MoP, which has yet to be accepted by the judiciary. After the NJAC judgment, the government had submitted an initial draft of the MoP that was soon rejected by the Supreme Court. The centre subsequently redrafted the MoP on guidelines provided by the court but this too has been sent back to the government on the grounds of ‘undesirability of certain clauses’ and lack of ‘harmony’. 

The collegium has questioned the validity of clauses which empower the government to reject recommendations on grounds of national interest as well as the role of the Attorney General and Advocate General’s of the states to have a say in the appointments. Further, the clause which allows the government not to reconsider the recommendations of the collegium even after reiteration has also been questioned. 

The government is now set to file a point-by-point reply in three weeks, addressing the concerns raised by the collegium regarding the revised MoP. The current standoff over the implementation of a judgment, which should ordinarily be a regular administrative task is indeed bizarre. Especially so, at a time when there exists a severe vacancy of 458 judges across the 24 high courts in the nation.