THE stand-off between the higher judiciary represented by the Supreme Court and the Modi government has escalated in the past few weeks.  The Supreme Court was informed by the attorney general last month that out of the 77 names proposed by the collegium for appointment as judges in the High Courts, the government had accepted the appointment of 34 judges while 43 names were sent back to the collegium. This unprecedented step by the government has raised the pitch of the confrontation with the Supreme Court.

The tussle over the appointment of judges in the High Courts comes in the background of the large number of vacancies of judges in the High Courts.  Out of the total sanctioned strength of 1,079 judges in the High Courts, the present strength of judges is 478. This means 44.3 percent of the posts are lying vacant. 

The Modi government is seeking to intervene in the appointment of judges in a manner which is illegal and politically suspect.  It is seeking to use the preparation of a Memorandum of Procedure (MoP) which is meant to spell out the actual procedure of appointing judges recommended by the collegium to stall the appointments proposed by the collegium.  It may be recalled that a Constitutional Bench of the Supreme Court had struck down the National Judicial Appointments Commission Act in October 2014 by declaring it as unconstitutional. The Supreme Court had, while asserting the collegium system, also asked the government to prepare an MoP to lay out a proper procedure and to make the system more transparent. 

The government has sought to use the drafting of the MoP to insert clauses which would amount to executive intervention in the appointment of judges.  For instance, the government wants to incorporate in the MoP a clause to provide that the collegium would consider only the names forwarded to it by a three-member committee of retired chief justices.  The committee of retired chief justices would be appointed by the central government, thus creating the avenues for the government to dictate the names to be considered by the collegium.  

The other objectionable provision proposed by the government is the clause to reject the names recommended by the collegium on the grounds of national security. This is an obvious move to veto names which do not conform to the notions of “nationalism” of the BJP/RSS combine and its proclivity to brand non-conformists as “anti-national” and hence a threat to national security. 

The government, in a reply to question in parliament last week, stated that the decision to return 43 names to the collegium was based on “adverse intelligence” reports and the “serious nature of the complaints against them”. It is simply unbelievable that such a large number of persons recommended by the collegium are found unfit by the Intelligence Bureau.  The intention of the BJP government is clear – to weed out those persons who are not pliant or unwilling to go along with the official ideology. 

The CPI(M) has always maintained that the collegium system is a flawed and unsatisfactory method for appointing judges in the higher judiciary. It has wanted a National Judicial Commission, that is independent and broad-based, to undertake the task of appointing judges. 

The earlier legislation having been struck down by the Supreme Court, the only recourse is for parliament to adopt a new legislation which will avoid the defects in the earlier law and constitute a National Judicial Commission, which while having representatives of the executive, will not give it a predominant say, or veto powers. 

Till this is done, the collegium system has to be in place.  The Modi government has been working in a systematic way to undermine the independence and integrity of many institutions of the State.  The effort to tame the judiciary is the most dangerous of the lot.  The Supreme Court, if it returns the list of 43 names back for appointment to the government, it will have no choice but to implement the recommendation.   Not doing so will amount to a serious assault on the structure of the higher judiciary. The Modi government should know that democratic opinion in the country will not tolerate its pernicious attempts to control the judiciary. 

(December 7, 2016)