- The letter by Justice Kurian Joseph to the Chief Justice of India, also sent to 22 companion justices, requests for a bench of seven justices to be formed to “suo motu take up the matter of the government sitting on the two names” for proposed elevation.
- The prolonged silence, writes Justice Kurian Joseph, imperils the “life and existence” of the court.
- In October 2015, SC struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which gave politicians and civil society a final say in the appointment of judges in HC and the SC.
- The court further asked the executive to propose a Memorandum of Procedure (MoP), but the executive has not yet finalised it, despite reminders by the court. Instead, the executive seems to claim a power of veto over the names proposed. In doing so, it seeks to do indirectly what it could not directly — thus violating a foundational axiom of the rule of law.
The proposed MoP had following provisions :- Seniority & Merit - While promoting a High Court Chief Justice or a judge to the Supreme Court, the criteria of seniority, merit and integrity would be followed. Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”. Reasons in writing - In case a senior Chief Justice being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”. Three-judge quota - The government proposed that up to three judges may be appointed from the Bar or from distinguished jurists with proven track records. Committee & Secretariat - To set up an institutional mechanism in the form of a committee to assist the Collegium in evaluation of the suitability of prospective candidates. The government has also proposed that there be a secretariat that maintains a database of judges, schedules Collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. National Security - The government also insists on adding a criteria of “national security” and “larger public interests” for rejection of recommendation by the Collegium.
Present system :-
- Since the 1998 Advisory Opinion, the judicial collegium was not questioned, only the composition and the procedure of functioning were sought to be clarified.Contrary to the heavy propaganda now of judges appointing judges, the Union government had itself accepted the new collegium system of five senior-most justices.
- It was also accepted that the executive will convey its concerns to the CJI if a security issue was involved, if the collegium reiterated them, the names will become final. Despite occasional grapevine criticism of the collegium, the system continued in place.
The governance tendency comprising non-response to troublesome situations seems to be on a high growth curve.
- The four senior-most justices had earlier pointed out, in a press conference, that the recommendations of the collegium concerning the MoP were not responded to for a long time, even though finalised by the court.
- The lack of response to the CJI is against the dignity of a high constitutional office, and may also entail the offence of contempt, scandalising the court.
Reform must come from within:
Any reform of the system will have to come from within the court itself.
It has made a welcome beginning by posting some details on the website; but it must do more, for there is no more demanding virtue than transparency.
- There are prescribed or ordained ways of handling constitutional disagreements. Sheer assertion of the power of not responding is not one of them.
- The executive clearly holds a different view than the justices on the powers of elevation and transfer; the way ahead is to have a new and creative National Judicial Commission Act, which is acceptable to both the high organs of governance.
- The CJI should be, and must remain, in a position of robust dialogue with dissenting brethren and blend his power as master of roster with respect for the suggestions and opinions of others.
Constitutional democracy is not imperilled by dissent and disagreement but by an overweening sense of power in one person or institution.
The Fundamental Duties of all citizens (under Part IV-A of the Constitution) require us to interrupt power from dreams of limitless sovereignty. We need to rekindle a constitutional flame in all our institutions.