This tends to put the senior-most judges, who form the collegiums, on the defensive even as they have dug their heels in over certain clauses in the memorandum of procedure that comes with the National Judicial Appointments Commission. What is really unfortunate is that sections of the public are wrongly conflating the two - the government's stance and that of Justice Chelameswar. They are imagining that the latter's view is a vindication of the government's stand but the two are on entirely different pages.
The interest of the political class (the National Judicial Appointments Commission Bill and accompanying Constitutional amendment were passed in record time with support from both the Bharatiya Janata Party and the Congress) is to wrest back from the judiciary the final say on the appointment of senior judges, whereas Justice Chelameswar's stance is a firm move to demand a transparent procedure for the collegium to appoint judges.
The solution to the present impasse is not to hand over the final say in appointments to the political class but for the senior-most judges to devise a transparent system which can then be followed. There is no doubt that the appointment of senior judges is effectively in the hands of a group of powerful judges, who, along with the chief justice, form a majority in the collegium. There is no reason why a laid-down procedure and criteria for selection should not be followed and reasons for decisions on candidates recorded and supporting evidence attached. The longer the judges stall on this the more they will be harming the national interest and if, in the process, the political class wins and things go back to where they were during the reign of former prime minister Indira Gandhi, history will be merciless towards present day judiciary.
There is no doubt that things are far better (the higher judiciary in good part shows that it has a mind of its own and has often been able to deliver justice after all other avenues have failed) than in the past when judges did not have the final say in judicial appointments. But there is an enormous scope for further improvement and the judges must not let a significant weakness of theirs hand over a victory to the political class. The credibility of India's top judges is not what it should be but that of the political class is far worse.
Since procedure and transparency are critical, what could be a good way to ensuring them? There can be a National Judicial Service, entry into which will be through written test and interview, conducted by a body like the Public Service Commission. Those that make it to the service should have the opportunity to go all the way to the top, the Supreme Court. For a lawyer, the criteria can be the number of years at the Bar, quality of work, as reflected in the judgments of important cases in which they have appeared, and the esteem in which he is held by the judges before whom he has appeared. To ensure impartiality, the whole process (direct recruitment and lateral entry) can be overseen by a Judicial Services Commission, made up of full time (not ex-officio) members chosen from key areas of public life including respected names in the social sector. Britain has something like this in place and it works. Whichever structure is adopted, it is critical that a process is laid down and facts and opinions brought into play are recorded.
On the other hand, a glimpse into the mind of the government, as it bats for the political class, can be gauged from the key differences that it has over the memorandum of procedure for the Judicial Appointments Commission. Foremost among these is the power to reject a name recommended by the collegium on the grounds of "national interest". Apart from "national interest" being much too vague and broad an idea, it is absurd that the government of the day (made up of people who are there today and maybe gone tomorrow) will have a better sense of the national interest than the senior-most judges who are the guardians of the Constitution. Should the government have some sensitive information on a candidate, it can share it with the collegiums, which can take a view on it and record a confidential note. It has to be ensured that a candidate is not excluded merely because, say, he appeared for an alleged extremist in a trial.
The second point of dispute is what happens when the government returns a name to the collegium. Today, the name goes through if the collegium recommends it a second time. The memorandum of procedure proposes that the collegium has no power to recommend a name a second time once the government has returned it. This is plain power play, trying to establish whose word prevails. To sum up - judges should appoint judges, but in a transparent manner.