Unseemly conflict – Government’s diatribe does not resolve conflict over judicial appointments

Source: The post is based on the following articles

“Unseemly conflict – Government’s diatribe does not resolve conflict over judicial appointments” published in The Hindu on 1^st November 2022.

“Order, Order – NJAC better than collegium” published in The Times of India on 1^st November 2022.

Syllabus: GS – 2: Structure, organization and functioning of the Executive and the Judiciary.

Relevance: About the conflicts on the functioning of the judiciary.

News: Recently, the government returned 20 names proposed by the Supreme Court collegium for judicial appointments. Among them, ten names were reiterated after being returned earlier

What are the major challenges hampering the functioning of the judiciary?

One, Union Law Minister is targeting the Collegium system with its inherent challenges. The collegium is a demonstrably poor system where the individual biases of judges can affect who gets selected or dropped and there’s too much opacity in its ways of functioning.

The second is the Government’s strategy of delaying appointments recommended by the Collegium is seen as a counterblast to its loss of primacy in the matter. For instance, a Supreme Court Bench questioned whether Government’s inaction is a retaliation against the Court as it did not permit the implementation of the National Judicial Appointments Commission.

Third, the Government is also violating the prevailing legal position that a recommendation reiterated by the Collegium, after due consideration of its objections, is binding on it.

What are the implications of the conflicts on the functioning of the judiciary?

Withdrawal of eminent lawyers: The uncertainty over the fate of a recommendation for appointment is resulting in eminent lawyers withdrawing their consent or declining invitations to join the Bench. This is a tragic waste of judicial talent.

Favours government-chosen candidates: The Government ignoring the reiterations results in the Government having a particular candidate in the position. In future, they might support the government in judgements.

Widen the rift between the government and the judiciary: In counter-retaliation, the judiciary might hold a major verdict that may go against the Government. This will in turn be portrayed by the political leadership as stemming from the hostility of the judiciary.

Above all, litigants will face collateral damage in the fight between judiciary and the government.

What should be done to ensure the smooth functioning of the judiciary?

Every week there are high court judges retiring and vacancies are growing. Existing judges can dispose of more cases. But they cannot make amends for vacancies.

Only if the two sides are willing to address each other’s concerns, the relations between the judiciary and the executive will be back on track. This can be done by

a) The Government clearing the pending recommendations, b) The judiciary must agree to a process of reforms in the way the Collegium functions. The judiciary should expand the range of consultation and widen the zone of consideration, c) The Government must bring a new constitutional mechanism to make appointments without undermining judicial authority. For instance, The Centre can unveil a new NJAC after consultation with political parties and SC, which is acceptable to all sides, d) The judiciary must make public criteria used to select judges, like assessments of judgments written or cases argued.