The government wants a nominee to serve on the panel that selects judges, but the opposition claims this is an attempt to seize power.

Union Law Minister Kiren Rijiju has written to Chief Justice of India D Y Chandrachud “suggesting” the inclusion of a government candidate in the decision-making process for shortlisting of judges, amidst the tug of war between the Centre and the Supreme Court Collegium over the appointment of judges. Nonetheless, a number of opposition groups criticised the government for what they deemed an attempt to “intimidate and then capture” the judiciary.

Sources informed The Deccan Era that Rijiju’s letter included “suggestions for streamlining” the Memorandum of Procedure pertaining to the nomination of judges, which noted that its finalization was still “pending.”

According to sources, the communication is merely part of “an ongoing debate” between the government and the court regarding appointments, and the Collegium has yet to discuss it.

Opposition parties, including the Congress, AAP, RJD, DMK, and the Left, asserted that the government had a “grander scheme to frighten the court.” “The Vice President’s and the Law Minister’s attacks on the judiciary are part of a concerted effort to frighten and then seize control of the institution. The Collegium need reformation. But what this government desires is absolute submission. Its prescription is a poison pill for an independent judiciary, said Jairam Ramesh, chief of communication for the Indian Congress, in an interview with The Deccan Era.

The central suggestion in Rijiju’s letter, according to sources, is that the “search and evaluation committee” for High Court judges should include a nominee of the Central and respective state governments, while that for shortlisting Supreme Court and High Court Chief Justices should include a nominee of the Centre.

The letter recommended that the committee will then offer its recommendations to the High Court or Supreme Court Collegium. The Collegium will still make the final decision. The names are currently reviewed by the Collegium of the High Courts or the Supreme Court, which consists of senior justices.


Change in selection

The Supreme Court Collegium consists of the CJI and the four most senior Supreme Court judges. The High Court Collegium consists of the Chief Justice of the High Court and two of the court’s most senior judges. The Collegium evaluates judicial nominations. The Centre and states will have a role in the selection of judges for higher courts under Rijiju’s proposal.

The Congress, meanwhile, made reference to Vice President Jagdeep Dhankhar’s recent criticism of the Supreme Court for knocking down the National Judicial Appointments Commission Act (NJAC), as well as the Constitution’s fundamental framework.

“Even if the Supreme Court wished to satisfy the Central Government’s request, they would be unable to do so if the Memorandum of Procedure lacks the necessary space. Then the moot question is why only a government representative alone?” Manish Tewari, a member of the Lok Sabha and Congress leader, told The Deccan Era.

The general secretary of the CPI, D Raja, stated that the government is attempting to impose pressure on the court so that it will not remain neutral and preserve constitutional values.

Rajya Sabha P Wilson of the DMK stated that the government “cannot interfere with the operation of the judiciary.”

The letter was written by Rijiju after the Supreme Court heard on January 6 a petition by the Advocates Association Bengaluru seeking contempt proceedings against the Centre for delaying the appointment of justices to the Karnataka High Court notwithstanding the Collegium’s recommendations.

During that hearing, a bench led by Justice S K Kaul had voiced “grave worry” about the 10 outstanding transfer recommendations for High Court judges, stating that it “sends a very misleading signal that other motives are at play.” The Centre notified the court on that date that “all efforts are being made to adhere to deadlines.”

The bench led by Justice Kaul, a member of the Supreme Court Collegium, had previously opted to proceed with the matter on the judicial side, marking a departure from the past when the Supreme Court mostly dealt with administrative problems regarding the appointment of judges.

On November 11 of last year, when hearing the Bengaluru petition, the court stated that “it is unacceptable to leave names pending.” Since then, the Government has responded in kind through the Law Minister; Vice President Dhankhar joined the discussion later.

Later that month, while speaking at the Times Now Summit 2022, the Law Minister reportedly responded to the comments made on November 11 by stating, “Never say that the Government is waiting on the papers, then don’t provide the paperwork to the government, you appoint yourself, you run the show…” He characterised the Collegium system as “extra-Constitutional.”

In response to Rijiju’s statements, Justice Kaul stated on November 28 while hearing the Bengaluru petition, “Let them grant the power. We have no problems… I ignored all press stories, but he claims that when a person of sufficient authority says, “Let them do it themselves,” we’ll do it ourselves without problem. It comes from a person of sufficient rank. ought not to have I can only state that that should not have occurred.” The judge did not request identification.

The Vice President then criticised the supreme court for knocking down the bill to establish a NJAC for choosing judges in 2015. On December 7 of last year, when presiding over Rajya Sabha, Dhankhar referred to the invalidation of the NJAC Act as a “serious surrender” of Parliamentary sovereignty and a violation of the “mandate of the people.”

The next day, when the Bengaluru petition was reheard, the president of the Supreme Court Bar Association, Senior Advocate Vikas Singh, told the court that “persons in constitutional posts have stated that the Supreme Court lacks the authority to conduct judicial review.” Without naming names, Justice Kaul also said, “Tomorrow, individuals will claim that the basic framework is not part of the Constitution.”

Last week, the Vice President highlighted the Supreme Court’s 1973 landmark ruling in the Kesavananda Bharati case, in which it was determined that Parliament had the right to modify the Constitution but not its fundamental structure. In this scenario, Dhankar stated that the question “Are we a democratic nation?” will be impossible to answer.


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