The Government has made its first move in changing the collegium system of appointing judges which has been in vogue since 1993. As usual, there can be a number of permutations and combinations as to what is the best method to appoint new judges. Let us first examine the Constitution. The Constitution says that the Government shall appoint the judges in consultation with the Chief Justice of India. Literally, it would mean the Government will decide who will be the judges and would consult the Chief Justice and whether he agrees or not, the Government will decide whom to appoint.
Later, the Supreme Court objected and said mere consultation has no meaning because if the Supreme Court Chief Justice disagrees, then the consultation becomes hollow. So the word consultation was interpreted to mean concurrence, which means the Government will suggest the name and if the Chief Justice also agrees with that name that person will be appointed. If the Chief Justice did not agree with that name, that name will be withheld or withdrawn. That went on. I think that was a satisfactory way of appointing judges. After all, how many judges can the Government suggest. We must understand that the Executive is also a responsible wing of the Constitution. Unfortunately, in 1993, the Supreme Court unilaterally decided that no, this system is not good, and a collegium of judges of the Supreme Court, the Chief Justice of India and 2 or 3 senior judges of the Supreme Court, will forward the names to the Government and the Government shall appoint them. This is totally unconstitutional. It is totally wrong. But the Narasimha Rao Government did not object to it and it has been going on for 21 years. This Government for the first time has not appointed a judge, namely Gopal Subramanium, recommended by the collegium, though Gopal Subramanium is a person of impeccable credentials and deserves to be a Supreme Court judge. But what this Government has done has again gone back to the pre-1993 situation which is the correct situation. Judges have to be decided by the Government. Nowhere in the world do judges appoint judges. It is an appointment subject to checks and balances. In America, the President appoints a judge, but the judge has to undergo a strict screening by the Senate Judiciary Committee. In full public and press view, all the questions have to be answered, as to what is his attitude, what his background is, what did he think of the difficult issues of America like gay marriages and abortions etc. It is only when the Senate Judiciary Committee gives its approval that the appointment is officially made. We can have a system like that in India. But definitely, the present system is most unsatisfactory, namely, the Chief Justice of the Supreme Court giving the name and the Government forwarding it to the President and the President becomes a mere rubber stamp. That is totally wrong.
Now comes the solution this Government is trying to find. They have passed a Judicial Appointments Bill, a Constitution Amendment Bill. A National Judicial Appointments Commission (NJAC) will be there consisting of some judicial members, some non judicial members etc. and they will decide who the judges will be. Any system other than the one which was there till these recent Bills were passed is welcome. But I think this is also a complicated procedure that is not required. A simple law verifying that the pre-1993 position is a Constitutionally correct position should suffice. However there is one danger. The Supreme Court may turn down the legislation the Parliament passes, either the Judicial Appointments Bill or the pre-1993 position. In my opinion, if the Supreme Court does that, they are unnecessarily confronting Parliament and the Executive. Can you imagine, if Indira Gandhi would have been the Prime Minister, would the Supreme Court strike down this legislation? Unfortunately, even the Supreme Court, without meaning any disrespect to them, looks at the strength of the Government. They found the Narasimha Rao Government to be a weak Government and therefore went ahead with this interpretation of the law. Now the National Judicial Appointment Commission should be fully discussed. The Congress party and the BJP, both should agree, other regional parties should also agree. After it has been unanimously passed and the Supreme Court still finds fault with it, and there has to be a confrontation with the Supreme Court, so be it. After all Parliament is also a supreme body, equally sovereign as the Supreme Court.
However, I do not know what the Law Minister Ravi Shankar Prasad really thinks of this issue, but this is a matter to which the Prime Minister himself should give personal consideration and arrive at an amicable, civilised way of appointing deserving, competent people to the bench of the Supreme Court and various High Courts of the country.


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