JUDICIARY AND GOVERNMENT

1. Context

A major confrontation on between the union government and the Supreme Court over the former’s resentment towards the collegium system of appointments and its push to have a dominant say in judicial appointments and transfers.

2. Indian Judiciary

• The Judiciary is one of the three organs of the Indian government, and it is responsible for interpreting and applying the law. The Indian judiciary is an independent body that ensures the fair and impartial administration of justice in the country.
• The judiciary has a hierarchical structure, with the Supreme Court at the top followed by the High Courts, and then the lower courts.
• The Supreme Court is the highest court of appeals in India. It comprises the Chief Justice and 33 other judges appointed by the President of India. The Supreme Court has original, appellate, and advisory jurisdiction.
• At the level below the Supreme Court, there are High Courts. They exercise control over a state or a union territory. Each High Court consists of a Chief Justice and such other number of judges as may be determined by Parliament.
• At the lowest level, Subordinate courts include District Courts, Taluka Courts, Munsifs Magistrates’ Courts, and Village Panchayat Courts, etc.

3. Issues in Indian Judiciary

3.1 Lack of accountability in judicial appointments:

• At present, the judges of the Supreme Court and the high courts are appointed by a collegium system which includes CJI and 4 senior judges of the Supreme Court.
• Although there have been many debates associated with the method of appointing by a collegium system which includes CJI and 4 senior judges of the Supreme Court.
• The minutes of the collegium meetings deciding appointments and transfers of judges are not made public. The office of CJI  has only recently been declared a public office.
• There have been no appointments from the category of distinguished jurists as mentioned under Article 124 of the constitution.
• It’s a non-constitutional body with no seat in the collegium for any non-judge neither from the executive, the Bar, etc. This violates the principle of checks and balances.

3.2 Distribution of Cases and master of the Roster mechanism

•  The singular power of the CJI as the Master of the Roster-i.e., the vest exclusive discretion in the chief justice to constitute benches and allocate cases.
• While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
• From the standpoint of judicial independence, the master of the roster power makes the CJI’s office a high-stakes one. It makes the CJI the sole point of defense of the court against executive interference.
• With the CJI as the sole master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI. Yet, the Supreme Court has been reluctant to dilute this power.
• In Ashok Pande v. Supreme Court of India (2018), a three-judge bench of the court held that the master of the roster is the CJI’s exclusive power.
• Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the master of the roster should be interpreted as the collegium.

3.3 The in-house inquiry system

• The in-house procedure, crystallized in a 1995 Supreme Court judgment in the C. Ravichandran Iyer case, details the various stages of the investigation into complaints against sitting high court judges.
• It requires the chief justice of India to constitute a three-member panel of Supreme Court judges to enquire into a complaint of misconduct received by the CJI against a sitting judge.
• The procedure, however, does not expressly provide for a mechanism to constitute a committee when the complaint is against the CJI himself.
• Controversy erupted when CJI constituted the bench by himself to probe a complaint against himself. The bench consisted of senior most judges of SC who will be CJI in near future. Since the current CJI will recommend the name of the next CJI, this raises the question of conflict of interest.
• The committee lacked overall representation of all stakeholders of SC e.g bar council, employees, etc. It also violates the principle of natural justice.

4. Memorandum of Procedure (MOP)

Memorandum of procedure (MOP) is an agreement between the judiciary and the government. It contains a set of guidelines for making appointments to the Supreme Court and high court.

Significance: The MoP is a crucial document as the collegium system of appointing judges is a judicial innovation that is not mandated through legislation or the text of the constitution.

5. Evolution of MoP

• The MoP evolved based on three SC decisions- the first judge case (1981), Second Judge Case (1993), and the third judge Case (1998).
• In 2016, the MoP re-negotiations took place following the Supreme Court’s decision to strike down the National Judicial Appointments Commission (NJAC).
• However, a judicial order can overturn the negotiations as an order of the SC is the law of the land binding the government.

6. Government’s Grievances 

The center argues that the collegiums, both at the Supreme Court and high court levels, are delaying judicial appointments. The NJAC was a good law thwarted by the court. It says that the High courts are not making recommendations six months in advance of a vacancy.

The government has complained that the Supreme Court reject 25% of names recommended by the high courts for judgeships. While making 165 appointments during 2022, 221 recommendations made by the high courts were processed. The remaining 56 proposals were rejected by the Supreme Court collegium.

7. Supreme Court’s Response

The court said the collegium system, combined with the MoP, is the law as it exists now. The government has either kept collegium recommendations pending for no apparent reason or has repeatedly sent back names reiterated by the collegium. The court accused the government of not appointing persons who are not “palatable” to it.

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