Tuesday, January 31, 2023

Wrong way on right way

It is unfortunate that the ruling party government at the Centre and the country’s highest legal forum, the Supreme Court, are engaged in public debate over which of them- executive or judiciary- should have the final say in appointment matters. A rare public attack on the Supreme Court by government ministers is reviving a debate about whether elected representatives should have a say in choosing the country’s arbiters of justice. This recent skirmish is yet another instance of an often-witnessed confrontation between the two pillars of democracy over each other’s supremacy. The debate between the government and the Supreme Court is over whether the Collegium system should have the final say in appointment of judges? The collegium, which includes the Supreme Court’s five senior-most judges, recommends potential candidates for appointments. These recommendations are to be vetted and approved by the government. In case of an impasse, the collegium’s position is required to be considered final. In a recent instance of departure from the established procedure, the government returned 19 recommendations made by the collegium, but 10 of these were recommended a second time. Union law minister Kiren Rijiju, spearheading the government attack said India was the only country where judges appoint judges, and called the collegium system “opaque”. He has taken several swipes at the so-called collegium system over the past few months. More fuel was added at the November 2022 hearing in the Supreme Court over a batch of petitions to evolve an independent and neutral mechanism for the appointment of an Election Commission saw a high-pitch exchange between the judges and senior counsel representing the Narendra Modi government. The central government came into the Supreme Court’s firing line for neither framing a law that defines the process of appointment of election commissioners nor laying down the eligibility criteria for their appointment. The top court spoke out on the need to “insulate” the Chief Election Commissioner’s office against political pressures, suggested the inclusion of the Chief Justice of India(CJI) in the selection panel and questioned the short tenures of the ECs/CEC. It even summoned the records of former bureaucrat Ajay Goel’s recent appointment as one of the two election commissioners to “understand the procedure followed”. What the Modi government attempted in 2015, a year after storming to power at the Centre, was in tabling a bill – The National Judicial Appointments Commission (NJAC) – to replace the collegium system. However, the bill was quashed by the Supreme Court. The NJAC sought to give the executive a say in judicial appointments, which the top court said infringed upon judicial independence. The Law Minister would have been part of the NJAC, which would also have included representatives chosen by the Prime Minister. On December 7,2022 newly elected vice president of India Jagdeep Dhankar lashed out at the Supreme Court for scrapping the NJAC. If government has its way then the composition of the judiciary would be reflected by judges inclined to the ruling party or its ideology. A case in point is the American system where the incumbent president selects judges to the Supreme Court. If the president is Republican chances are conservative judges will be appointed. And if a Democrat is president, chances are that liberal and left oriented judges would be appointed. The view of Supreme Court advocate Sanjay Hegde was explicit that the issue was about safeguarding the independence of the judiciary from political influence.

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