The war over appointments in the judiciary was out in the open on Friday with the Supreme Court pulling up the Union Government for not clearing the 78 requests made by the collegium. In a strong observation, the Chief Justice of India T.S. Thakur asked the government if it was "trying to bring the judiciary to a grinding halt".
A lot has been said on the issue of appointments and one may recollect Justice Thakur himself breaking down at a function attended by Prime Minister Narendra Modi over the issue of pendency and vacancies. Today's observations in court is a signal that the matter has now turned into a confrontation between the judiciary and the government, the bone of contention being the Memorandum of Procedure (MoP) relating to the appointment of judges.
There has been a trust deficit between the judiciary and the government following a Supreme Court verdict of October 2015 in which the National Judicial Appointments Commission Act was struck down. The act gave powers to politicians and civil society to have a final say in the appointment of judges to the Supreme Court and High Court.
However the Supreme Court struck the act down and stated that the earlier system of judges being appointed by the collegium would continue.
In March 2016, the Supreme Court had turned down the MoP and returned the same to the government while stating that certain clauses needed to be rectified. The MoP was prepared to make the appointment of judges to the high courts more transparent. When the NJAC Act was struck down, the Supreme Court asked the government to prepare a revised MoP in consultation with the Chief Justice of India.
Neither the Centre nor the judiciary is in a mood to back down. In the MoP, the Centre has reiterated that it should have the power to reject any name recommended by the collegium for elevation on grounds of national security. While this provision was there in the first draft, it was rejected by the collegium stating that it could lead to interference in the judiciary.
While the Centre has retained this provision, it has however stated that it will inform the collegium about the reasons for rejection.
The other bone of contention is the power of a chief minister to recommend the names of advocates to the Chief Justice of the respective high courts for appointment. While the collegium had objected to this, the Centre has decided to stick to its stand on the issue.
Turf war delays appointments
Some senior advocates say that this looks like an ego clash in the aftermath of the NJAC Act being stuck down. While there is a need to have transparency in the appointment of judges, one should also look at the huge number of vacancies and speed up the process. Currently there are 477 vacancies across high courts, and there are over four million cases pending.
The collegium has been contending that if these changes are not effected, then there will be undue interference in the judiciary. The government on the other hand says that it is only making the process more transparent.
Several changes that had been recommended by the CJI had been effected, officials in the Union Law Department said. For instance the 'merit vs seniority' debate in matter of appointments. The government had earlier said that appointments shall be merit-based,
subject to seniority and integrity to be the main criteria.
The collegium, however, had told the Centre that seniority should be the main criterion, merit and integrity secondary parametres. This view has been accepted by the government.
But on the contentious issues of MoP and chief ministers' recommendations, the CJI is expected to meet with the four senior-most judges of the Supreme Court and discuss what stance the judiciary must take on those issues on which the Centre has already reiterated its stand.
The question now is, who will blink first -- the government or the judiciary?