The Government’s unhappiness over the collegium system of appointing Supreme Court and High Court judges is quite well known. Chief Justice of India DY Chandrachud has struck a conciliatory note by agreeing to reconsider the collegium system. This means that a writ petition seeking the revival of the National Judicial Appointments Commission (NJAC) will be listed in due course. This will also bring back the old NJAC versus collegium debate. The NJAC came into being after the Ninety-ninth Constitutional Amendment, 2014. The commission comprised six people—the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons.’ The eminent persons were to be nominated for a three-year term (with the condition that there would be no re-nomination). A committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha would nominate the two persons. The validity of the commission was successfully challenged in the Supreme Court, where it was struck down by a four-one verdict. The Government’s argument at that time was that judges appoint judges, which was not fair practice. There has been little change in that stand. Law and Justice Minister Kiren Rijiju recently termed the collegium system as “opaque.” In fact, he claimed that a majority of judges agreed with him: “Judges are not happy with the collegium system today.” He went on to assert that when there is a provision for judges selecting judges, there is politics. Worse, he added, “the politics of us politicians is nothing to what goes on in the judiciary.”
The Government has a point. Three or half of the now disbanded NJAC consisted of top judges only; two other members were also appointed in a manner in which government representation was in a minority. That seems fair enough, and yet the top court rejected it. And while the incumbent Chief Justice has agreed to reconsider the collegium system, his immediate predecessor, UU Lalit, has already made it clear that no change is warranted as the collegium system is “perfect.” It looks like the prominent members of the judiciary are opposed to any change because they fear that this would allow the Government to unduly interfere in judicial matters. The trust deficit has increased in the last few years because of the perception that the Government is trying to fill all organisations, including the Constitutional and statutory ones, with persons sympathetic to its cause. The perception may not be illusory. At any rate, the need of the hour is an understanding between the executive and the judiciary, for the two organs cannot remain antithetical to each other for long. For one, there are delays in appointments, which is not good for the judicial system which is already overburdened with cases. By reconsidering the collegium system, the Chief Justice has made rapprochement possible.