Parliamentary panel recommends placing Executive on equal footing with Judiciary

Taking serious note of the strains that have come up between the government and Supreme Court on the issue of appointment of judges, a parliamentary panel has recommended establishing the original constitutional position that places the Executive on an equal footing with the Judiciary.

“The judicial appointments are shared responsibility of the Executive and the Judiciary and to be exercised jointly with neither organ of the State having a primacy over the other,” noted the panel suggesting the government to take appropriate measures to reverse the distortion that has come in the original mandate of the Constitution due to judgements of the Apex Court in the Second Judgement and subsequent cases.  

Establishing Collegium System for appointment and transfer of judges in higher judiciary, a nine 9 judge bench of Supreme Court in 1993, known as the Second Judgement, had given primacy to the Chief Justice of India over the Executive.

“The role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary,” it held.

To make the appointment process transparent, the committee suggested  making public the eligibility criteria, method of selection, manner of evaluation of merit, criteria of selection, number of vacancies while maintaining the confidentiality of names shortlisted.  

To allay apprehensions of government rejecting names approved by the Supreme Court Collegium under the veil of “national security” and in the “larger public interest” that could tantamount to exercising Veto, the panel recommended the government to define these two criteria in no ambiguous terms and list circumstances and antecedents which fall within their preview.

The parliamentary standing committee report on “Inordinate delay in filling up the vacancies in the Supreme Court and High Courts” was tabled in the Rajya Sabha on Thursday.  Headed by Rajya Sabha MP from Congress, Anand Sharma, the committee has nine members from the Upper House and 29 from the Lok Sabha. If the government decides the recommendations can be taken up for consideration for implementation.

The panel, however, also recommended that glasnost (openness and transparency) in appointment of judges was the need of the hour and the Collegium or the government must specify reasons for rejecting a candidate.

“The Committee observes that the government also rejects the names recommended by the Supreme Court Collegium without furnishing cogent reasons. Such practices are against the principle of natural justice and leads to opaqueness in the appointment process,” the panel noted.   

In line with the global practice to gain from “enriched professional experience”, the panel has suggested raising the retirement age of Supreme Court judge from present 65 years to 67 and of High Court judge from 62 to 65 years.

For tackling the mounting burden of cases in the High Courts that at last count was more than 44 lakhs, the panel suggested invoking Article 224A of the Constitution that allows chief justices to appoint retired judicial officers as ad hoc high court judges.

The panel asked not to consider their appointment afresh (de novo) as there was “no merit” in repeating the same and “must give” the same status they were enjoying prior to the appointment. The

Names of 18 such ad hoc judges sent from the High Courts of Andhra Pradesh/Telangana, Madhya Pradesh, Allahabad and Calcutta are already pending with the government.

In order to avoid delay in filling up vacancies in constitutional courts the panel has recommended setting up a dedicated Cell in the Registry of the constitutional courts to assist initiation of the proposals in time for filling up various vacancies.  

“The Cell... may particularly ensure that the eligible persons from women, minorities etc. are also included so that the composition of higher judiciary becomes reflective of the diversity of the society,” the report said.