The judicial logjam

Govt should not use national security to veto appointments

It appears that the central government and the Supreme Court are no closer to a compromise on how senior judges should be appointed. The five-judge collegium of the Supreme Court has reportedly rejected several controversial clauses that the government wanted to be included in the Memorandum of Procedure, or MoP, that is being drafted to govern how the senior judiciary is chosen. In particular, the collegium has said that the government’s proposal that it be allowed to reject possible candidates on the grounds of “national security” is unacceptable. The collegium apparently indicated that it would be willing to consider whatever material the government could provide in order to demonstrate that national security implications required a particular name to be passed over for elevation to the higher judiciary. But it intends to retain that decision for itself, indicating that if it was not the case then it would be tantamount to giving the government a “virtual veto” over the appointments process.

 
The Supreme Court’s concerns are, in this instance, justifiable. It is not difficult to see how the use of a national security criterion, no matter how unexceptionable it sounds, that the government does not have to explain could lead to arbitrariness. And once arbitrary choice from the executive is allowed into the process, then outright politicisation will not be far behind. The purpose of the MoP drafting exercise is to ensure that a good balance is found between accountability and politicisation, and including a national security veto for the executive in the MoP will militate against that balance. Law Minister Ravi Shankar Prasad has questioned the judiciary’s attitude in Parliament, saying that “the Prime Minister of India possesses the nuclear button… but cannot be trusted to appoint a fair judge”. But the minister is missing the point. The constitutional requirement of independence of the various branches of government means that processes must not give one branch – the executive, in this case – excessive power over another branch that is supposed to act as a counterweight. The nuclear button is the executive’s domain, but that does not mean that the head of the executive is all-powerful.

There are other, puzzling aspects to this debate over the “national security” veto. For one, even if the collegium demands that a government put down in writing what threats a particular individual poses to national security, it is difficult to imagine what such material could look like. If there is indeed a national security consideration, then why would government action wait until that individual is up for a judgeship? Surely other action will and should have been taken already. Overall, the government should recognise that it will not be able to exercise an open veto over the judicial appointments process. It should seek instead to ensure that the body making appointments has access to all the relevant information about a candidate and that the process is open, wide-ranging and transparent. The visible friction between the Supreme Court and the government on the subject of appointment has gone on long enough and is not in the national interest. Both sides must work harder to find a solution swiftly.