Ju­di­cial Ap­point­ments: A Break­through?

India Today - - UPFRONT - By Sud­hir Kr­ish­naswamy The au­thor is Di­rec­tor, School of Pol­icy and Gover­nance, Azim Premji Univer­sity

On Feb­ru­ary 6, the Supreme Court col­legium rec­om­mended that nine high court judges be ap­pointed as chief jus­tices of var­i­ous high courts. The move seems to fol­low an ear­lier rec­om­men­da­tion, made the pre­vi­ous week, to ap­point five HC judges to the apex court. To­gether, th­ese moves have been hailed as a break­through in the on­go­ing im­passe be­tween the ju­di­ciary and the ex­ec­u­tive. Ar­guably, till the ex­ec­u­tive con­firms th­ese ap­point­ments, the only break­through is that the col­legium has rec­om­mended names to the SC for the first time since De­cem­ber 2015!

So, what would a real break­through on ju­di­cial ap­point­ments look like? The ap­proval of the Me­moran­dum of Procedure out­lin­ing the pro­to­col of con­sul­ta­tion be­tween the ex­ec­u­tive and the ju­di­ciary would be a good first step. How­ever, the re­cent con­tro­ver­sies over the five names rec­om­mended to the Supreme Court sug­gest that a le­git­i­mate ju­di­cial ap­point­ment process re­mains as dis­tant as ever.

The ex­clu­sion of Jus­tice K.M. Joseph was strongly crit­i­cised in a dis­sent­ing note filed by Jus­tice J. Che­lameswar, who con­tended that he was an ex­cep­tional judge. The opac­ity of the cur­rent col­legium process, and sub­se­quent ne­go­ti­a­tion with the ex­ec­u­tive, leaves open the pos­si­bil­ity that the ex­ec­u­tive may be un­com­fort­able with Jus­tice Joseph’s rul­ing to re­verse the Cen­tre’s de­ci­sion to im­pose Pres­i­dent’s rule in Ut­tarak­hand.

Last week, the US Pres­i­dent nom­i­nated his pick for the US Supreme Court. This an­nounce­ment has sparked sharp as­sess­ments of the aca­demic, pro­fes­sional and ju­di­cial qual­i­ties of the nom­i­nee as well as al­le­ga­tions that the Se­nate, by stalling Pres­i­dent Obama’s nom­i­nee, has stolen a Supreme Court seat. The par­ti­san ran­cour of US wran­gling over ju­di­cial ap­point­ments oc­cludes the de­lib­er­a­tive and trans­par­ent na­ture of the ju­di­cial ap­point­ment process. A real break­through in ju­di­cial ap­point­ments is pos­si­ble only if the col­legium process is mod­i­fied to al­low for trans­parency and pub­lic par­tic­i­pa­tion.

A break­through is pos­si­ble only if the col­legium process is mod­i­fied

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