The Supreme Court expressing its displeasure to the Union government over the delay in appointing people in the higher judiciary despite reiteration by its collegium and issuing notice to bureaucrats in the ministry of law and justice must trigger a serious discussion in the way in which the whole exercise is being conducted.
In the constitutional scheme of things, the executive makes appointments to the higher judiciary after consulting the Chief Justice of India. This was a carefully drafted process in which both the judiciary and the executive had a say. There were demands for handing the entire process over to the judiciary which Dr B.R. Ambedkar, chairman of the drafting committee of the Constitution, was resolutely opposed to. However, with the passage of time, the Supreme Court expanded the consultation process, formed the collegium system and made it mandatory for the government to go by its advice, virtually denying the latter a role. The judiciary also dumped the National Judicial Appointment Commission, formed by a constitution amendment, finding it ultra vires.
The apex court, while taking up the issue, has flagged the difficulty in getting eminent persons to join the bench. The governmental delay exacerbates the problem. It is an issue the government must address. As the judges said, if the government has an objection to a name, then it can very well send the recommendation back to the collegium, and it must use the opportunity. Delaying the procedure has little justification.
That said, it cannot go unnoticed that the entire judges’ selection process is shrouded in mystery. The citizenry has very little idea about how a judge, the custodian and interpreter of the Constitution and the law, is appointed. The collegium offers no reason as to how a judge is selected over another and nor does the government reveal why it withholds a name. This is unacceptable. Since we have decided to follow the collegium system, the apex court and the government must strive to bring greater transparency to it and speed it up. It’s the ordinary citizen who is the loser in the absence of quality on the bench.
