The need to find common ground
Chief Justice of India (CJI) Bhushan R Gavai's advice to the Union government to refrain from selectively acting on collegium recommendations is timely. HT reported on Thursday that CJI Gavai issued this message after presiding over his first collegium meeting on May 26. According to people familiar with the matter, CJI Gavai was emphatic that segregating names from a batch of recommendations not only disturbs the seniority of judges but also sends an improper message about the collegium's authority and functioning.
India has a nuanced process to pick judges for constitutional courts — where the senior-most judges pick judicial candidates and their names are confirmed by the executive, pending background checks. Selectively picking candidates out of a batch of names recommended by the collegium creates an unfavourable perception of bias and hurts the public standing of the judiciary. The smooth running of the judiciary — one of the pillars of India's democracy — depends on an honest and transparent working relationship between the courts and the executive. The selective picking of names by the executive, therefore, threatens to upset that delicate balance by creating an uneven playing field where some names are given precedence over others. Not only is this detrimental to critical processes such as seniority and filling of vacancies but also the standing of particular judges.
This is not the first time such concerns have been raised. In 2014, then CJI RM Lodha wrote to then law minister Ravi Shankar Prasad, objecting to the government's unilateral decision to drop former solicitor general Gopal Subramanium from a list of four recommended judges for the Supreme Court. Subramanium later withdrew his nomination. Between 2022 and 2023, a bench led by justice Sanjay Kishan Kaul noted that 'selective appointments' damaged the 'element of workable trust' needed between the judiciary and the executive, and sent 'a wrong signal'.
The relationship between the government and the judiciary has remained fraught since a showdown over the proposed National Judicial Appointments Commission Act. This newspaper has been a constant advocate for greater transparency in the working of the collegium. But just because the Memorandum of Procedure (MoP) — which guides the appointment and transfer of judges in constitutional courts — does not explicitly prohibit segregation, it doesn't mean that the practice should continue. The Centre should reconsider its stance.
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