It is piquant indeed when the highest court of the land has to ask the Central government what it is doing about appointing judges, in the course of hearing a PIL on expediting judicial appointments. And the government’s counsel replies solemnly that there is ‘no logjam’, only for the Chief Justice of India to remind the Attorney General that the Chattisgarh High Court is making do with just eight judges, when its strength should be 22. On September 30 next, the matter will be up for detailed hearing and the government’s stand will become clearer. But the tension over judicial appointments is palpable, even though the Centre was at pains to assure the Supreme Court that there is ‘no situation of confrontation’ and the government is working to ensure appointments in timely fashion. But the concern expressed by Chief Justice TS Thakur is telling — that judges are selected through an arduous process, that once the collegium gives its recommendations, the government ‘must respond quickly with either rejection or acceptance’. So the issue of expeditiously filling up judicial posts continues to hang fire while our courts are clogged with lakhs of pending cases. The suspicion grows that the government is digging in its heels ever since the Supreme Court in October last year struck down the tiol Judicial Appointments Commission (NJAC) bill as unconstitutiol. That piece of proposed legislation would have given the Executive a significant role in appointing judges. The six-member commission was to comprise of the Chief Justice, two senior Supreme Court judges, the Union Law minister and ‘two eminent persons’ to be nomited by the Prime Minister, the Leader of the Opposition in Lok Sabha and the Chief Justice. The sticking point was the veto power — vested on any two members of the NJAC. There was every possibility that two or all three non-judicial members could reject any candidate proposed by the three judicial members in the commission.
So when the Supreme Court struck the NJAC Act, 2015 on the ground that it violated the basic structure of the Constitution by undermining the Judiciary, the earlier collegium system stood automatically restored. Recently, the Supreme Court threw out a PIL by tiol Campaign for Lawyers, which had asked for an altertive to the collegium with an independent body of the Executive and the Judiciary for judicial appointments. But the collegium that makes appointments to the Supreme Court and High Courts the sole preserve of the Chief Justice and four senior-most apex court judges, is itself in the news presently with Justice J Chelameswar publicly criticizing it for ‘lack of transparency in the appointments process’. Refusing to attend its meetings, he has demanded that the collegium should institute objective criteria as well as transparency in decision-making. How the Chief Justice of India responds to Justice Chelameswar’s critique remains to be seen. But transparency and accountability in the process of appointing judges will remain a major public issue. Considering the Executive’s many attempts in the past to circumscribe the Judiciary and keep it under pressure, any initiative to give the Executive a role in judicial appointments will be viewed with suspicion. But if judges want to keep control over appointment of brother judges to themselves, they ought to do away with the veil of secrecy that gives various quarters, including the government of the day, an opportunity to point fingers. If the people of this country can know their political leaders, surely they would like to know their judges. Considering that the courts have often been the last resort for the voiceless and the downtrodden, judicial activism remains a saving grace in a milieu of power grab by an over-reaching Executive. A full public view of how our courts work and how judges are appointed will be in tune with changing times.