Selective arguments

Executive and judiciary need to find common ground

The swearing in of former Bombay High Court Chief Justice Dipankar Datta as judge of the Supreme Court on Monday brought to a close one of several running controversies between the judiciary and executive over the appointment and transfer of judges in the higher judiciary. Justice Datta’s appointment had been one of 20-odd higher judiciary appointments the government had delayed late last month for unspecified reasons. The issue of higher judiciary appointments has long been a point of contention between the government and the apex court but gathered traction after August 2014, when the Constitution (99th Amendment) Act created the National Judicial Appointments Commission (NJAC) to replace the decades-old collegium system, which had vested powers to appoint and transfer judges to the Supreme Court and High Courts and empowered Parliament to make laws regulating the NJAC’s functioning.

But the law proved short-lived after several lawyers and their associations challenged its constitutionality. The Act was repealed in 2015, after a Constitution Bench struck it down. As the recent controversy indicates, the issue is far from settled. Among the 20 appointment files returned to the collegium for reconsideration, 11 concerned fresh cases and the remaining nine were reiterations by the apex court. Public statements by the law minister and no less than the Vice-President about the general unhappiness with the collegium mode, including among lawyers, have pushed the issue back into the public discourse. The collegium system was decided by three judgments, collectively called the Three Judges Cases, the second and third of which underlined that the executive could request reconsideration of appointments and transfers but were obligated to approve appointments once they were reiterated.

Last month’s move by the government raised fresh questions about its own impartiality since in at least one case, the judge selected for transfer had been critical of the government. Even if these concerns are valid, the fact is that there has been growing discomfort over the lack of transparency in the collegium’s decision-making process and calls by the legal community for greater clarity. This was a point a former Chief Justice of India emphasised recently, suggesting that concerns about the collegium system from the government and lawyers should be addressed. Both his successors, however, have chosen to back the efficacy of the existing system. Chief Justice of India D Y Chandrachud has admitted that no system is perfect and that he and his collegium colleagues are “faithful soldiers” who would work their way through imperfections in the system.

Given that fidelity to the Constitution, however unwavering, can also be open to interpretation, it may be worthwhile for the apex court to examine concrete ways to reduce the opacity in the process beyond reassurances of intentions. Doing so is both an institutional and practical imperative. Sixty-odd recommendations are pending with the government, and the vacancies in the Supreme Court and 25 High Courts are six out of a sanctioned strength of 34 and 335 out of a sanctioned strength of 1,108, respectively. A return to the NJAC may not be possible. But some sort of meeting ground that narrows the differences and hastens the appointment and transfer system transparently in a judiciary where backlogs are humongous is urgently needed.