On February 6 the Supreme Court collegium recommended 9 High Court judges be appointed as Chief Justices of various High Courts. It appears that this recommendation follows an earlier collegium recommendation to appoint 5 High Court judges to the Supreme Court made the previous week. Taken together, these moves have been hailed as a breakthrough in the ongoing impasse between the judiciary and the executive. Arguably till the Executive confirms these appointments, the only breakthrough is that the collegium has recommended names to the Supreme Court for the first time since December 2015!
There is some speculation that as Justice Khehar has replaced Justice Thakur as Chief Justice, the change in personnel may indicate a new institutional dynamic. However it appears that the Supreme Court indulging a Public Interest Litigation that seeks judicial orders to fill vacancies in various High Courts is a more proximate cause. A judicial order to appoint judges is neither a sustainable institutional protocol nor does it enhance the participation, transparency and deliberation that is key to legitimate judicial appointments.
So what would a real breakthrough on judicial appointment look like? The approval of the Memorandum of Procedure outlining the protocol of consultation between the Executive and the Judiciary would be a good first step. The long pending reconciliation of drafts between the executive and the court would secure institutional cooperation and sustain comity between them. However the recent controversies over the five names recommended to the Supreme Court suggests that a legitimate judicial appointment process remains as distant as ever.
The exclusion of Justice KM Joseph was strongly criticized in a dissenting note circulated by Justice Chelameswar who contends that Justice Joseph is a judge of exceptional ability and spotless integrity. The opacity of the current collegium process in the court, and subsequent negotiation with the executive, does not reveal whether Justice Joseph’s exclusion was motivated by the Executive’s discomfort with his decision to strike down President’s rule in Uttarakhand.
Last week, the US President nominated his pick for the US Supreme Court. This announcement has sparked sharp assessments of the academic, professional and judicial qualities of the nominee as well as acrimony over the Senate ‘stealing’ a Supreme Court seat by stalling President Obama’s nominee. The partisan rancor of US wrangling over judicial appointments occludes the deliberative and transparent nature of the judicial appointment process that allows for substantive debate. A real breakthrough in Indian judicial appointments is possible only if the collegium process is modified to allow for transparency, deliberation and public participation.
For a shorter version of this article, view the published piece titled ‘Judicial Appointments: A Breakthrough?’, on India Today.