India’s government is locked in a battle with the country’s supreme court over moves by prime minister Narendra Modi’s administration to secure greater executive control over the appointment of senior judges.
At present, judges on India’s supreme court and 25 state high courts are recommended for appointment by a five-member collegium comprising the chief justice of India and his four most senior colleagues.
Following clearance by governmental security agencies, the federal law minister then forwards these appointments to the prime minister who, in keeping with established convention and without demur, advises the president to formally appoint the judges.
Mr Modi’s ruling Bharatiya Janana Party (BJP), however, claims the collegium system needs reform as it is “opaque and unaccountable”. It has attempted to replace it via parliamentary legislation in 2015 with a national judicial appointments commission comprising the federal Law minister and other government nominees.
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The supreme sourt struck that measure, upholding the collegium’s continuance.
In its ruling at the time it had said the judiciary could only safeguard the rights of citizens by keeping it “absolutely insulated and independent from other organs of the government”. An independent judiciary, the court stated, lay at the heart of democracy and acted as a counterweight to the executive and legislature branches.
Former supreme court judge and ex-solicitor seneral Santosh Hedge last week said that India was witnessing the advent of its legislative authority attempting to become the “supreme power”. The collegium system, he told Reuters, might not be completely perfect, but it was not unfair.
Other retired judges, lawyers and legal experts concurred.
“The judiciary needs to be a voice, not an echo,” said Rekha Sharma former Delhi high court judge. The government’s demand for a say in the appointment of judges unsettles the settled position, which by and large hasworked well, she told the Indian Express.
its fight back against the latest move to alter the appointments process, the supreme court last week made public the government’s objections for rejecting five candidates it had recommended earlier for elevation as judges and, reproposed their names for appointment.
One of these contenders, lawyer Saurabh Kirpal, is gay and has a Swiss partner, and India’s security agencies flagged his potential appointment as a security concern, whilst two others were rejected for criticising Mr Modi and the BJP government in social media posts, the court revealed. One of the two latter nominees, it transpired, was deemed unacceptable for forwarding a magazine article censuring the prime minister.
Opposing Mr Kirpal’s nomination the government stated that though homosexuality had been decriminalised in India, same-sex marriage still remained “bereft of recognition either in codified statutory law or uncodified personal law”. Mr Kirpalis also a gay rights activist, a stand the BJP intrinsically opposes.
In recent weeks federal law minister Kiren Rijju has consistently criticised the collegium system, accusing it of subjectivity in appointing judges whom they knew and of not shortlisting other meritorious candidates.
“Across the globe judges do not appoint judges”, Mr Rijju recently said, “but in India they do.”
This face off has led to delays in multiple judges’ appointments: seven to the supreme court and more than 300 to state high courts. This has prompted deferrals in adjudicating more than 60,000 cases pending in the supreme court alone, most of them over five-years-old.
The overall tally of all types of cases awaiting closure in assorted Indian courts is about 47 million.
