The long-running battle between the central government and the Supreme Court over judicial appointments shows no sign of losing any heat. This is unfortunate; it is incumbent upon both participants to ensure that an amicable settlement is swiftly found that respects both judicial independence and the need for accountability. In recent times, disagreements have escalated. Earlier this month, the Centre rejected 43 names on the list of appointments for the higher judiciary sent to it by the collegium, the body that currently makes such appointments. The Supreme Court refused to give in. A two-judge bench that included Chief Justice TS Thakur said: “We have reiterated 43 names for the appointment as judges of high courts which were rejected by the government and have been sent back for reconsideration.” It is true that until new rules are put in place, convention demands that the government accepts the collegium’s recommendation if it is sent for reconsideration.
Justice Thakur, who is due to retire in the first week of January next year, has been a firm advocate of judicial independence. Last month, a bench, which included him, had told the government — in the person of Attorney General Mukul Rohatgi — that it was bringing the judiciary to “a grinding halt”. In response to the apex court’s charge, the government struck back hard. Law Minister Ravi Shankar Prasad argued that the government had made 120 appointments to the higher judiciary this year and pointed out that this number was just one shy of the highest ever made in a calendar year. Yet, that does not tell the whole story. The fact is that, since May 2015, unfilled vacancies as a proportion of the strength of the higher judiciary — the Supreme Court and the high courts — has gone up by nearly seven percentage points, to almost 43 per cent. The government has indeed agreed to appoint some retired judges to clean up the backlog, but that is hardly a permanent solution.
The debate over the appointments process at present turns on two questions in the proposed memorandum of procedure that will set the format for the choice of new judges going forward. The first is that the government intends to reserve the right to reject any judge on the grounds of national security. The second is that reasons for the promotion or rejection of individual judges by the collegium will have to be provided. Good sense should prevail on these disagreements, and both sides will have to give a little and get a little. For instance, the courts might have to accept that more transparency will be needed in the reasoning underlying their choices. This will only strengthen trust in the judiciary in the long run. Meanwhile, the government must recognise that “national security” is too vague a phrase. It is open to misuse. If it is aware of concerns about any individual judge, it should share these with the collegium in confidence and then respect the collegium’s decision, if the collegium system is to stay at all. A broad-ranging and opaque veto vested in the executive is not a good idea, and it will seriously undermine judicial independence. An amicable solution to this problem lies within reach. It should not be further delayed.