Rare public spat shows rift between India government, top court on judicial postings

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A rare public attack on India’s Supreme Court by government ministers is reviving a debate about whether elected representatives should have a say in choosing the country’s arbiters of justice.

Law Minister Kiren Rijiju has taken several swipes at the so-called collegium system over the past few months, alleging that its opacity allows judges to appoint or promote people they know rather than the fittest person for the job. The matter escalated when Vice President Jagdeep Dhankhar last week slammed the Supreme Court for scrapping in 2015 a law passed by parliament that had specified a method to appoint new judges.

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The Supreme Court on Thursday said the remarks are “not taken well” and asked the Attorney General for India to “advise members of the executive to exercise restraint.”

Some commentators say Prime Minister Narendra Modi’s administration is seeking a bigger role in the appointment of judges, with several cases due to be heard in coming months including petitions against an opaque method of political funding and permitting same-sex marriage. While the executive arm plays a vital role in selection of judges in the US, India has favored an independent judiciary as a key feature of its constitutional democracy.

At present, a collegium of the Supreme Court’s five senior-most judges recommend potential candidates for appointments. These recommendations are to be vetted and approved by the government. In case of an impasse, the collegium’s position is required to be considered final.

In a recent instance of departure from established procedure, the government returned 19 recommendations made by the collegium but 10 of these were recommended a second time.

“Opacity happens irrespective of who is nominating the judges,” said Alok Kumar Prasanna, a senior resident fellow at the Vidhi Centre for Legal Policy. “It’s not the greater say (of the government) in the process which causes a loss of independence so much as the lack of transparency and diversity in the manner of appointment.”

Others disagree.

“It is no more just an issue of executive against the judiciary, it is about independence of judiciary,” said senior advocate Sanjay Hegde. “One of the ways to ensure independence of judiciary is to ensure that judiciary has a dominant voice in the appointment of judges. If left to the executive, there may be politically partisan appointments.”

Law Minister Rijiju has termed the collegium system “alien to the constitution,” even as his ministry told lawmakers on December 8 that there is no proposal to reintroduce the National Judicial Appointments Committee, which the Supreme Court had called “unconstitutional” and scrapped in 2015. The Law Minister would have been part of the NJAC, which would also have included representatives chosen by the Prime Minister.

Read more: India’s top court suspends British-era sedition law

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