Indian government and Supreme Court must end the stand-off on judicial appointments

The confrontation between India’s government and the Supreme Court over judicial appointments escalated with the law minister upping the ante, saying that judges do not face public scrutiny, unlike politicians. Meanwhile, for the first time, the top court made public inputs from central intelligence agencies regarding their objections to some judicial appointments.

The reports made for startling reading. For one senior lawyer, Saurabh Kirpal, the agencies cited his sexual orientation (he is openly gay) as an issue and the fact that he has a Swiss partner. The Supreme Court collegium, the panel which appoints judges, rejected these arguments. In another case, the agencies disapproved of the candidate for sharing an article critical of the prime minister. This too was rejected by the collegium.

The publication of these inputs has left the government seething. They argue that intelligence agencies’ work will be hampered if they fear their reports will be made public. However, the government can’t have it both ways. On the one hand, they seek transparency in judicial appointments; on the other, they are angry at the top court for doing just that. The Supreme Court’s decision to go public was smart. But the court cannot be selective. It must reveal the reasons for all appointments, not just those potentially embarrassing for the government.

Should judges appoint judges?

Retired Supreme Court judges, including Madan Lokur and Deepak Gupta, have strongly criticised the government, accusing it of trying to undermine the independence of the judiciary. Justice Deepak Gupta, speaking to me on NDTV last week, even questioned the “will of the people“ argument of the government, saying they only had 35 per cent of the popular vote.

At the heart of this debate is the question: Should judges appoint judges?

Under the current system, senior judges of the collegium make the appointments to High Courts and the top court with inputs from the central government and its intelligence agencies. While the government can raise objections and return files to the collegium, it does not have a choice if the collegium reiterates an appointment. Since there is no time limit for a government response, files are often returned only after months or even years to delay appointments. This is why there are a large number of vacancies in the courts.

While the government’s attack on the judiciary is worrying, the collegium system also needs reform. Most judges acknowledge this, even those who suspect the government of trying to control the judiciary. Former High Court judge R.S. Sodhi has called the collegium system “unconstitutional” and told me on NDTV that the current system is “arbitrary”, “high-handed”, and a “fiefdom” of three persons.

The question is — should the government have a greater say in judicial appointments? The short answer is no. But the collegium cannot have only judges. A new framework must be worked out. Should a parliament committee be part of the process, with MPs from the government and the opposition? Or should the collegium have members of the bar and civil society too? These proposals must be debated.

In 2015, the Supreme Court struck down the National Judicial Appointment Commission Act passed by parliament. It would have had a body comprising three senior-most judges of the Supreme Court, the federal law minister, and two eminent persons appointed by the chief justice of India, prime minister, and leader of the opposition in the Lok Sabha (lower house of the parliament).

A public debate required

The public battle between the government of India and the country’s Supreme Court has gone on for far too long. It’s time to find a way out. For a start, the law minister and the vice-president should stop their endless sniping at the courts.

Eminent jurist Fali Nariman says the law minister and the chief justice of India should have a closed-door meeting to resolve the issues. Others say a vigorous public and transparent debate is required in a democracy. Either way, this needs to be put to rest now.