Sensible stands by both sides this time around will prevent a confrontation
Both the judiciary and the executive, arguably the two most important pillars of state, seem to have taken on board the learnings from their confrontation of October 2015 when the apex court quashed the National Judicial Appointments Commission (NJAC) Act devised as an alternative to replace of the Supreme Court collegium system of appointment of judges to the higher courts. Or so it is hoped. The lingering issue emanating from that row has been the yet-to-be-finalised Memorandum of Procedure (MoP) for judges' selection by the collegium on which the Court had passed an order in December 2015. On Friday, the apex court revisited the issue while disposing an appeal filed by a lawyer challenging all judicial appointments made by the Supreme Court collegium without the MoP being finalised; the appeal was dismissed but the Court issued notice to Attorney General KK Venugopal wanting to know why the MoP has not been finalised by the Centre for close to two years.
Unlike the last time the issue flared up, however, when the then CJI threatened the Government for sitting on the collegium's recommendations and the Centre hit back saying the apex court had not responded to its letters due to a lack of consensus among the judges who constitute the collegium, Friday's notice was more in the nature of a reminder to the Centre, with the apex court accepting that though it had not fixed any time limit to finalise the MoP, it was getting on for two years since its order. A valid nudge, in fact, since it was the Centre that had focused attention on the undeniable deficiencies in the collegium system in the first place, and the Court, taking note of the same, had allowed the inclusion of the criteria of transparency, complaint redressal and a Secretariat to ensure timely and objective appointments.
That Friday's developments in Court came a day after a meeting of the Supreme Court collegium which decided that henceforth a committee of two apex court judges will evaluate the judgments of additional judges of High Courts to take a call on whether they should be promoted as permanent judges, is also significant. Because in doing so, the collegium partially modified its March 2017 order by which it had ended the practice of professional evaluation of additional judges, a practice instituted in 2010, which had come in for criticism from the Executive among others due to the fact that the appraisal was conducted by a committee constituted by Chief Justices of High Courts and thus seen as a kind of peer review which may have occasionally have lacked necessary objectivity. The collegium decision could also be seen as an affirmation that the apex court does recognise there is always room for improvement in its appointment procedures.
The ball, so to speak, is now back in the Centre's court. While the Government has made public its differences with the Supreme Court on the striking down of the NJAC Act, it must be commended for not letting that issue detain it from fostering a working relationship between these two vital institutions of India's democracy. What the Centre's stand will be when it replies to the notice issued on the MoP will be watched with keen interest as its content and tenor would indicate how things go from here. As for a fresh NJAC Act, as it were, the Government would be well-advised to bide its time before giving it another try.