Two of the recommendations that the Supreme Court collegium has reiterated this week had earlier been returned by government on account of the candidates’ social media posts. The point here is whether being “selectively critical … on the important policies, initiatives and directions of the government” precludes one from becoming a judge. In the US, it does. Supreme and federal court justices there are nominated by the president and approved by the Senate by a majority vote. Some state trial court judges actually run on a party ticket, where they appear as Republicans or Democrats. But India has a very different system. Here, the only views whose expression should bar a person from becoming a judge should be those that undermine constitutional values or the fundamental rights enshrined in the Constitution.

In this sense the collegium is absolutely right to hold that the expression of political views, as part of the right to free speech, cannot disentitle candidates from becoming judges in India. But what has happened in the case of these two candidates is part of a larger GOI-collegium fight on judicial appointments. For instance, while the collegium keeps insisting that per the current MoP its reiteration of a name is binding on GOI, the latter has hardened its position against this convention.

The lack of transparency and accountability of the collegium that had caused diverse political parties to cooperate on the NJAC constitutional amendment, hasn’t seen much redress since SC quashed NJAC back in 2015 – even as dissonance with GOI has widened significantly. It is citizens and justice that are the real victims of this impasse. It must end. The Centre and SC must sit together to devise an institutional mechanism for smoother – and timebound –judicial appointments.

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

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