4 Years Of NJAC Judgment : Where Is The MoP For Judges Appointment?

Exactly four years ago on this day, a Constitution Bench of the Supreme Court struck down the ninety ninth Constitution amendment which introduced the National Judicial Appointments Commission to replace the collegium system for appointment of judges.

By 4:1 majority, the Court ruled that supremacy of judiciary in the matter of judges appointment is necessary to preserve judicial independence. 

However, the Court also acknowledged the "failings" of the collegium system, taking  note of allegations such as sidelining of deserving persons, nepotism, purposeful delay in appointments etc.

"These allegations certainly call for deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution", Justice Kurian Joseph observed in his judgment.

"Therefore, the Collegium system needs to be improved requiring a glasnost and a perestroika, and hence the case needs to be heard further in this regard", he added.

The Court admitted that there was a need to improve the Memorandum of Procedure for appointment of judges to bring in more transparency and efficiency.

Two months later, the bench issued guidelines to the Central Government to finalize a draft MoP for improving the Collegium system by taking into account factors such as eligibility criteria, transparency, establishment of a permanent secretariat at High Courts and Supreme Courts to streamline appointment process, appropriate mechanism to deal with complaints against recommendees etc.

Memorandum of Procedure- The bone of contention.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not been very smooth between the Centre and the SC. The then Union Law Minister Arun Jaitley criticized the NJAC judgment as "tyranny of the unelected".

In this backdrop, the Centre was not receptive of the SC's directions to bring in a new MoP for improving the Collegium system. In fact, there were even talks of a new law to replace the NJAC struck down by SC.

There was apparent bitterness between the judiciary and centre on this issue, and the MoP was not given much priority by the Government. Because of the stand-off between the Government and the Collegium about MoP finalization, judicial appointments were getting delayed. The Centre has dragged its feet on the Collegium recommendations regarding judges' appointments and transfers. Therefore, many of the High Courts witnessed high percentage of judicial vacancies.

Later, the Centre formulated a draft MoP, which included a contentious clause enabling the Centre to reject a candidate on the ground of 'national security', suspected to be a veto in disguise. The draft MoP by the Centre suggested that the Attorney General and the Advocate Generals of the respective states should have a say in the matter of selection. Retired judges' involvement, too, was suggested. But the Collegium rejected these recommendations in the draft MoP.

In the wake of the stalemate, the Collegium recommendations got stuck at the Ministry, without further movement.  

Centre's delay in processing the Collegium recommendations caused much anguish to the then CJI T.S Thakur. A Bench headed by him did not mince words in expressing its unhappiness over the 'logjam' in appointing judges.

"The collegium has cleared 75 names of high court judges (for transfer/appointment) but they have not been approved. I don't know why, where these files are stuck", a much disturbed CJI asked the then Attorney General Mukul Rohatgi.

While speaking at a public function in which PM Narendra Modi was also attending, CJI Thakur made an emotional appeal to the Centre to act promptly on judicial appointments and, in fact, broke down to tears during his speech. Neither his criticism nor his crying, so to say, moved the Government.

Then came Justice J.S Khehar. He expressed dissatisfaction at how the Centre was delaying appointments. As the CJI, he was prepared to consider the issue on the judicial side by adjudicating the PILs seeking expeditious filling up of judicial vacancies. The then Attorney General, Mukul Rohatgi, objected to the PILs stating that it was a matter to be dealt with by the administrative side of the judiciary and not its judicial side. "We cannot run away from our own cause when they (citizens) are projecting the cause of the judiciary.", the Bench observed, overruling the AG's objections.

During May 2017, the SC collegium led by the then CJI Khehar finalized the MoP, conceding to the Government's demand that it could veto a candidate on the ground of 'national security'. The Supreme Court also gave up its objections to the Centre's proposal for setting up secretariats to deal with judicial appointments. Even though the SC Collegium has cleared the MoP, the Centre has not returned its word on it and has kept it pending claiming that it's studying the matter.

On 27th October, 2017, a Division Bench comprising Justice A.K Goel and Justice U.U Lalit sought the Government's response, in a petition filed by R.P. Luthra, regarding the steps being taken to finalize the MoP to appoint judges. The letter reads:

R.P. Luthra's petition, later, did not get posted before the same Division Bench that heard the matter first; instead, it was posted before a three judge-bench presided by the then CJI Dipak Misra. Even the hearing date fixed by the earlier DB was advanced. The CJI-Bench dismissed the matter, recalling the order passed by the Division Bench on 27th October. The Bench observed that there was no need to proceed with the matter because of a Constitution Bench's earlier decision.

In February 2018, the Centre said in the Lok Sabha that the finalization of MoP will take more time. P.P. Chaudhary, the then Minister of State for Law and Justice and Corporate Affairs said that the Centre had written to the Secretary General of the Supreme Court on 11 July, 2017, highlighting the need to improve the draft MoP in the wake of the SC judgment in the case of Justice C S Karnan.

There has been no further progress on the issue ever since, and the appointments are being made as per the previous MoP which was formulated way back during the times of former CJI J S Verma.

What has NJAC judgment achieved?

Four years down the line, it is relevant to ask what has the NJAC judgment achieved with respect to institutional reforms.

The Centre has been acting with increased one-upmanship in the matter of judicial appointments, considerably eroding the supremacy of Collegium. There are several instances of the Centre giving a cold shoulder to Collegium recommendations. Even the reiterations made by the Collegium, which are binding on the Centre as per the Second Judges' Case decision, were ignored by the Centre in some cases.

It also seemed that the Collegium was bowing to the executive pressures in many cases such as the elevation of Justice K M Joseph, transfers of Justice Jayant Patel and Justice Akil Kureshi.

Due to the lack of guidelines regarding a timeline for acting on Collegium recommendations, the Centre is selectively delaying action on certain files.There is no consistent pattern in the responses of Central Government to Collegium reiterations. In some cases, they are accepted soon ; in some cases, they are accepted after several months ; and in most cases, they are kept pending for several months.

Since Collegium's reiteration is binding on the centre, its selective delay in acting on the same can only be construed as a colourable exercise of power to scuttle judicial appointments. This makes out a case for setting a timeline for a decision on reiterations.

The recent controversy regarding the transfer proposals of Justice Tahilramani (former Madras HC CJ) and Justice Kureshi indicates that the the system continues to be steeped in opaqueness, despite the appeals by Justice Kurian Joseph for a "glasnost" and "perestroika".

It may not be wrong to conclude that the status quo with respect to the 'failings' of collegium system continues, even four years after NJAC verdict. At the same time, there has been gradual erosion of judicial supremacy in the matter of appointments, with the consistent incursions of the political executive.