India is a country of over 1.3 billion people. With such a large population, an independent judiciary has been a boon for the democratic system to sustain itself. The Supreme Court, by its judgment, arrogated to itself the power to appoint judges. From now on, all appointments made to the Supreme Court are made on the recommendations of the Supreme Court panel. Collegium consists of 5 most senior Justices of the Supreme Court including the Chief Justice of India who oversees the same. The High Court also has its own college which recommends the names of lawyers to be appointed as judges and the Supreme Court College accepts or rejects the same. Once the College of the Supreme Court sends the name to the central government, the latter has only two options. The government could either approve the names and make the necessary appointments, or send the names back for reconsideration. In the event that the government chooses the second option and the Supreme Court returns the same for review, the government is bound to accept it.
In order to bring rationality and order of appointment, the Modi government adopted the National Judicial Appointments Commission (NJAC). However, the five-bench constitutional bench of the Supreme Court declared it unconstitutional in the name of an independent judiciary and disrupting the basic structure of the constitution. Now, once again, the appointment and transfer of judges to the upper echelons of the judiciary is done at the whim, wishes and total control of the Supreme Court. Recently, Senior Solicitor P Wilson wrote a letter to Union Law Minister Kiran Rijiju asking for more social diversity in judicial appointment. P Wilson is currently a member of Rajya Sabha. He previously served as Additional Solicitor General of India between August 2012 and May 2014 and Additional State Solicitor General of Tamil Nadu between August 2008 and May 2011.
In response to his letter, Union Law Minister Kiran Rijiju, himself a law graduate, replied to Wilson to inform him that the central government had instructed the chief justices of the high courts to take due consideration candidates belonging to Scheduled Castes/Scheduled Tribes, other Backward Classes, Minorities and Women when sending the proposal for appointment of High Court Judges. Further, Rijiju informed Wilson that the Constitution of India, which provides for the appointment of Justices to the Supreme Court and High Courts, does not provide any reservation for any caste or class of people. However, the Center has asked the Chief Justices to give due weight to these considerations to ensure social diversity.
“The Government has requested the Chief Justices of the High Courts that when sending proposals for the appointment of judges, special consideration be given to suitable candidates from Scheduled Castes, Scheduled Tribes, other backward classes, minorities and women in order to ensure social diversity in the appointment of judges of high courts”,
Recently, Madras High Court Lawyers wrote to the Supreme Court Collegium against the transfer of Madras Chief Justice Sanjib Banerjee to Meghalaya High Court. Since the appointment of judges is based solely on the decision of the Supreme Court Collegium, there can be no allegation against the incumbent government. Because there was a time during Indira Gandhi when judges were appointed according to the wishes of the government and a deliberate attempt was successfully made to limit the independence of the judiciary including the Supreme Court of India .
Author: Adv. Shashank Shekhar Jha
Legal Writer, GoaChronicle.com