January 22, 2023

Undermining the Judiciary

UNION law minister, Kiren Rijiju is at it again. He has written to the chief justice of India, D Y Chandrachud, suggesting that a new “search and evaluation committee” be set up which will include a government nominee for making recommendations to the supreme court and high court collegiums for appointment of judges.

This signals another step forward in the Modi government’s plan to assert the role of the executive in the appointment of judges and to undo the judicial primacy established through the Second Judges Case in 1993.  There are no search and evaluation committees at present and the process of selecting names is done through the collegium system. 

After the supreme court struck down the National Judicial Appointments Commission Act in 2015, the Modi government has been seeking ways to bypass this verdict.  The only constitutional way of overcoming the supreme court verdict would have been for parliament to pass appropriate legislation for setting out an appointment process which would stand up to the scrutiny of the court.  So far, the government has not done so. Instead, a concerted attempt is being made to undermine the independence of the judiciary by devious means.

The last few months saw a barrage of statements by the law minister, criticising the collegium system of appointing judges as alien to the constitution and asserting that the “spirit of the constitution” points to the right of the government to appoint judges. He was aided and abetted by the newly-elected vice president of India, Jagdeep Dhankhar, who recently went to the extent of questioning the “basic structure doctrine” set out by the supreme court in the Kesavananda Bharati case and declared that parliament is supreme and can amend the constitution in whatever manner it thinks fit.

Dhankhar, who occupies a constitutional position, has set out clearly the authoritarian intent of a majoritarian government – the judiciary cannot be independent of the executive.

It is reported that the government had written similar letters in the past seeking a representative of the government in a joint search committee formed and supervised by the chief justice of India. The difference in Rijiju’s letter is that it seeks similar committees for the high courts too, to guide the collegiums at the high court level.  All this is being done on the pretext of a new ‘memorandum of procedure’ which was to be finalised as per the decision of the supreme court in the NJAC case in 2015.

One of the pressure tactics adopted by the government has been to not clear the recommendations for appointment of judges and chief justices of the high courts.  At the beginning of the year, there were 104 recommendations made by the collegium of high courts.  The supreme court, on January 6, took strong exception to this unjustified delay in the appointment of judges.  The attorney general assured the court that within the next three days, 44 names of judges would be cleared for the appointment, but only nine names have been cleared so far. The supreme court bench led by Justice Sanjay Kishan Kaul asserted that the collegium system is the “law of the land”  which must be followed. 

The supreme court has so far shown no inclination to give in to the executive’s obstructionist tactics and rebuffed all such moves.  Kiran Rijiju’s latest letter should meet the same fate.  

(January 18, 2023)