How the Modi Government Is Using Its Pocket Veto to Neutralise  Primacy of the SC Collegium

By finalising a few names recommended by the collegium in accordance with the existing MoP but refraining from considering the rest on the ground that the MoP is not valid, the government is acting inconsistently and without any rationale.

File photo of Prime Minister Narendra Modi and Chief Justice T.S. Thalur. Credit: IANS

File photo of Prime Minister Narendra Modi and Chief Justice T.S. Thalur. Credit: IANS

New Delhi: Chief Justice T.S. Thakur’s charge against the central government on October 28 – that it is decimating the judiciary by sitting on the collegium’s recommendations for several months – may have seemed unusual and harsh to those in power but it underlines the growing sense of exasperation within the judiciary, Supreme Court watchers say.

Justice Thakur has alleged that it is the executive which is stalling appointments recommended by the Supreme Court’s Collegium for vacant judgeships in the high courts.

Attorney general Mukul Rohatgi, however, has maintained that the Supreme Court’s constitution bench decision on December 16, 2015 prevented the government from considering the names recommended by the collegium on the basis of the existing Memorandum of Procedure (MoP) – whose revision, in accordance with that decision, is the bone of contention between it and the collegium.

The Supreme Court’s December 16, 2015 order came after its main judgment in October 2015, setting aside the formation of the National Judicial Appointments Commission (NJAC) as an alternative to the existing collegium system of appointing judges to the higher judiciary – which it evolved through its judgment in the Second Judges case in 1993 and fine-tuned in the Third Judges case in 1998.

On his part, Justice Thakur believes the MoP issue is a red herring – as the existing memorandum has not been seen as a hurdle in clearing some judicial appointments after the December 16, 2015 order.

The number of judges’ vacancies in the 24 high courts now stands at 464, out of a total strength of 1079, which includes 255 vacancies in the position of permanent judges, and 209 vacancies in the position of additional judges. If the present stand-off continues, the number of vacancies will only grow.

The principles laid down by the Supreme Court in the Second and Third Judges cases, reiterated in the National Judicial Appointments Commission (NJAC) case, in October last year, are clear: If the government wants reconsideration of any recommended judicial appointment, it can return the proposed candidate’s name to the collegium for reconsideration. But this step may be invoked only once, and if the collegium sticks to its recommendation, then the appontment is binding on the government. Therefore, the question of primacy – if the collegium follows the norms laid down in the Second and Third Judges’ cases – is settled in favour of the judiciary.

What the rulebook says

But does the government have the option of delaying its decision on the collegium’s recommendations, and if so, is there any time limit within which it has to either accept or return them for reconsideration by the collegium?

The existing MoP, followed since 1999, is clear on this:

Appointments to the high court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy (Paragraph 11).

The most relevant question here is about the time limit within which the central government ought to finalise a recommendation sent by the collegium.

Paragraph 15.1 of the MoP says as follows:

“Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minister of Law, Justice and Company Affairs. Once the names have been considered and recommended by the Chief Justice of India, they should not be referred back to the State Constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion of CJI should be obtained.

“The Union Minister of Law, Justice and Company Affairs would then put up as early as possible, preferably, within three weeks, the recommendation of the CJI to the Prime Minister who will advise the President in the matter of appointment.”

Justice Thakur has alleged that there has been an inordinate delay of nine months – and that the government his essentially sitting on the recommendations for appointment of high court Judges, sent by the collegium.

The delay of nine months – when the existing MoP gives only three weeks to the government – is indeed unusual, and the government’s explanation that it is because of non-finalisation of the revised MoP does not square with the facts.

The process of revising the existing MoP, in accordance with the order delivered by the Supreme Court’s constitution bench on December 16, 2015, is an ongoing affair. After all, the MoP has undergone several revisions since independence.

It has not been possible to finalise the new MoP because of sharp differences between the government and the CJI-led collegium on certain clauses of the new MoP, as drafted by the law ministry. The collegium has to ensure that the revised MoP is consistent with the Supreme Court’s December 16, 2015 order.

This process of consultation between the government and the collegium on the revised MoP, as mandated by the constitution bench, takes time – thus providing both sides with an opportunity to reach a final agreement.

The task, however,  is not easy.

The Supreme Court has agreed with the government that changes in the existing MoP – such as, widening the zone of consideration, transparency keeping in mind the sensitivity of the issue, making the procedure broad-based by introducing certain supporting measures whereby candidates can be screened and evaluated, and complaints against them evaluated through a secretariat –  are broadly in tune with the majority of the suggestions it had received for reforming the collegium.

Why the MoP is not the issue

But nowhere in its December 16, 2015 order did the Supreme Court ask the government and the collegium to not follow the existing MoP till a new one is finalised.

Indeed, this question had come up during the hearing itself. The presiding judge, Justice J.S. Khehar, had told counsel that there was no bar on the collegium meeting and recommending names even during the hearing, and there was no question of the collegium recommending names if the government could not consider and finalise them.

In any case, if the government had any doubts about the import of the December 16, 2015 order relating to the validity of the existing MoP till the new one is finalised, it could have asked the same constitution bench to clarify its order, say observers.

Instead, what the government has done is to consider and finalise a few names recommended by the collegium in accordance with the existing MoP, while refraining from considering the remaining ones on the ground that the MoP is not valid, citing the Supreme Court’s December 16, 2015 order. This has only exposed its inconsistency, which is devoid of any rationale.

If the government is aggrieved that the process of finalising the MoP is taking an inordinately long time because of the collegium’s intransigence on certain clauses drafted by it, it should explore other remedies to redress the problem. It could draw the attention of the constitution bench which heard the NJAC matter to the impasse, and seek remedies. It could even seek the Supreme Court’s advisory opinion in the matter, under Article 143 of the constitution.

But observers also say that the collegium, which includes two members of the constitution bench which heard the NJAC matter, namely Justices Khehar and Jasti Chelameswar, could itself reflect on the merits of having in place the revised MoP at the earliest – thus pre-empting any complaint by the government that the judges themselves are responsible for the delay.

As the Supreme Court is rehearing the matter on November 11, the collegium may well reflect on the import of what B.R.Ambedkar had explained in the Constituent Assembly, while preferring the phrase “consultation with the Chief Justice of India”, instead of his “concurrence”, during the debate on the mode of appointment of judges to the higher judiciary.

Ambedkar observed as follows:

“I personally feel no doubt that Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all failings, all the sentiments, and the prejudices which we as common people have; and I think, a veto upon the appointment of judges is really to transfer the authority to the Chief Justice, which we are not prepared to vest in the President or the Government of the day. I, therefore, think that that is also a dangerous proposition.”

If Ambedkar was against granting veto power to the CJI in the matter of appointment of Judges, he would have opposed with equal vehemence, the pocket veto, which the government is currently exercising by sitting over the recommendations of the CJI-led Collegium.

No doubt, the Supreme Court has interpreted the word “consultation” to mean “concurrence”, and primacy for the CJI in the consultation process. But the present stand-off shows that even the Chief Justice and his colleagues  could not have anticipated that the government would use its pocket veto to neutralise the collegium’s primacy.