Status as on: 11/02/2023
The controversy surrounding the elevation of Senior Advocate Saurabh Kirpal to the Supreme Court is the latest instalment in the long-running series of public disagreements regarding judicial appointments between 2 pillars of our democracy, i.e., judiciary and executive. The Centre, disapproving of the elevation, gave the grounds of sexual orientation and the foreign national status of Mr Kripal’s partner, as justification for its stand. While these arguments can be easily dismissed, such an adversarial position taken by the government points to a larger issue: the collegium system.
The Collegium system refers, at the most basic level, to the system whereby judges appoint other judges. It emerged out of the 2nd judges’ case wherein Article 124 of the Constitution was interpreted to give primacy to the Chief Justice of India over the appointment of judges, The 3rd judge’s cases, expanded the collegium to include 4 senior-most judges of the Supreme Court.
The conflict between the Executive and the Judiciary regarding judicial appointment is not new. Its most visible manifestation was when Prime Minister Indira Gandhi appointed Justice A.N. Ray as the Chief Justice in 1975 out of turn, as a “reward” for his pro-government stance in the Kesavananda Bharti Case. This led to much public outcry, on the grounds of violation of judicial independence.
In contemporary times, however, the issue has come full circle. The conflict now pertains to the secretive manner in which the collegium appoints its favoured candidates to the higher judiciary. Such perception was bolstered by the narrative around nepotism prevalent in politics, and cinema, now extending to the judiciary. Here, it is pertinent to note that around 50 % of HC judges and 33% of SC judges are family members of those in higher echelons of the judiciary.
This was made even more conspicuous when the Supreme Court, in the 4th judge’s case struck down the National Judicial Appointments Commission whose ostensive aim was to infuse transparency in the appointment of judges.
On the other hand, the Court justified its above decision on the ground that the dominant presence of the Executive in the proposed Commission would threaten judicial independence. In this regard, the apprehension of the justice delivery system being made pliant to the Executive must also be given credence. This is evident in the manner in which many administrative tribunals, as well as constitutional bodies like the Election Commission, have been accused of bias towards the ruling party. Furthermore, the experience of the USA, where judges appointed by executive sanction have led to partisan appointments as in the case of the appointment of Brett Cavanaugh by Donald Trump, also does not bode well for judicial independence
Hence, reforms in the process of appointment must address both concerns regarding transparency as well as judicial independence. In the short run, the collegium must be made to pass reasoned orders while making appointments, while also making an official record of any dissent within the collegium. In the long run, a fresh, revised NJAC should be introduced, giving it constitutional status and equal representation between judiciary-executive;
The above solutions would reduce conflict, thereby speeding up appointments to fill vacancies in the higher Courts and consequently reducing the pendency of cases.
Disclaimer: The above article is based on the personal interpretation of the related orders and laws. The readers are expected to take expert opinions before relying upon the article. For more information, please contact us at ibc@centrik.in.
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