Union law minister Kiren Rijiju’s letter to CJI DY Chandrachud seeking representation for GoI in the collegium, and consultations with states, signals another front being opened in the Centre-Supreme Court standoff. The collegium system is the outcome of the Third Judges Case of 1998, which envisioned procedures for appointment of SC and high court judges. Subsequently, a Memorandum of Procedure (MoP) was finalised following consultations between the Centre and SC. The only way GoI’s new proposal can be implemented is if SC agrees to revisit the Second and Third Judges Cases. But this is a bad idea: It is Parliament that must do the law-making.

Making Parliament into a bystander while the executive proposes and the judiciary decides how to frame the law is bad form. This newspaper has argued for a National Judicial Appointments Commission and believes it deserves another chance. The constitution bench that scrapped NJAC did so without having the benefit of seeing it work. GoI, surprisingly, hasn’t made another attempt to re-enact NJAC. Perhaps, SC can be persuaded this time to watch NJAC at work before inevitable legal challenges to it are taken up. After all, such wait-and-watch has been the SC modus to challenges against demonetisation, electoral bonds, Article 370, CAA, etc.

An alternative course is to revise the MoP as directed by the five-judge NJAC bench in a subsequent order. This order laid special emphasis on making the collegium more transparent through appropriate revisions to the MoP through recording minutes of collegium discussions including dissension, setting up secretariats for each HC and SC for better management of the process, clear eligibility criteria for appointment to HCs and SC, and a mechanism to deal with complaints against judgeship candidates. Since Centre’s primary concern about the present collegium system appears to be the lack of transparency, the MoP revision, which has stalled for over six years over relatively minor disagreements, should be revived. The current standoff is creating unnecessary tensions, and mustn’t affect filling of judges’ vacancies. May wise judgment prevail.

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This piece appeared as an editorial opinion in the print edition of The Times of India.

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