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A power struggle has broken out between the executive and the judiciary over who should have a greater say in the appointment of judges. The issue at once rakes up memories of the Emergency (1975-77) when Indira Gandhi, seeking a ‘committed judiciary’, packed the courts with her trusted judges. Are we seeing a repeat? By rejecting the appointment of Gopal Subramanium as a Supreme Court judge, the Government has, in effect, questioned the collegium system of appointments.
Under this, a group of judges headed by the Chief Justice of India selects candidates and sends the list to the Government. The latter may raise objections but if these do not cut ice with the collegium, the President ends up ratifying the appointments. Hence, the scales are tilted in the courts’ favour. But is that a bad thing?
The Government is within its rights in questioning Subramanium’s candidature or even calling for a debate on how the collegium should work. Valid concerns have, in fact, been raised about accountability and transparency in the collegium’s working. But the Government’s methods have been disturbingly reminiscent of Indira Gandhi’s high-handed ways and her contempt for processes. Instead of furnishing its reasons for rejecting Subramanium, it has chosen to sit on the file, presenting the collegium with a fait accompli . Since its objections were not in writing, the implication is that the rejection is politically motivated.
What’s worse, the collegium has made no obvious effort to defend its choice or criticise the Government’s disregard for norms. This is a dangerous silence which could upset the balance of power between the executive and judiciary, pushing us back to the Indira Gandhi years.
The independence of the judiciary needs to be safeguarded. The BJP and the Congress are both out to scuttle the prevailing system, given their preference for a ‘judicial commission’ vis-à-vis appointments. This slippery path to a committed judiciary must be avoided and imperfections in the collegium system should be addressed.
Senior Assistant Editor
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