BRP Bhaskar, Political Commentator

India’s Supreme Court is quietly grappling with repeated attempts by the government to put back into the law certain ideas it has rejected as unconstitutional.

Narendra Modi began his prime ministerial career in 2014 with a confrontation with the Court. The issue then was who should have the last word in appointments and transfers of judges of superior courts.

The Constitution vests the power to appoint judges of the Supreme Court and the High Courts in the President. Since he is required to act on the advice of the Council of Ministers, the Executive had the last word although consultations with the Chief Justice of the court concerned was a part of the process.

Between 1981 and 1998 the Supreme Court, through three judgments in what are referred to as Judges Cases, shifted primacy in judicial appointments from the Executive to the Judiciary.

It brought into being bodies known as Judges Collegium, comprising the most senior judges, at the Supreme Court and the High Courts to make recommendations on appointments and transfers.  

The three judgments came at a time of political uncertainty. Neither the Executive nor Parliament was in a position to resist the Judiciary’s enlargement of its powers, exercising its sole right to interpret the Constitution.

The new system was hailed by a large section of the legal community and some political elements. They felt it would help ensure the independence of the Judiciary. However, few legal luminaries saw it as an improvement on the original scheme.

The long public debate on the issue led to a wide measure of agreement on the creation of a National Judicial Commission to oversee appointments and transfers of judges. Modi enacted a law to give effect to this idea.

The Supreme Court nullified the law, revived the collegiums and restored the judges-appoint-judges system. Although the bid to end the Judiciary’s primacy failed, the Modi government has been able to get collegiums to withdraw some of the names recommended by them by drawing attention to adverse official reports on the candidates.

Chief Justices have complained of heavy delays in appointments as the government takes a long time to process the recommendations of collegiums and pass them on to the President.

The current conflict between the government and the Supreme Court stems from differences over appointments to tribunals which are attached to Central ministries and state departments but perform judicial functions.   

The seeds of conflict were sown five years ago. It began with the Centre deciding to scrap some tribunals attached to it and transfer their functions to the High Courts and civil courts.

The decision was announced in the 2017 Union Budget. Provisions to give effect to the decision were included in the year’s Finance Act, along with other budget proposals.

The Madras Bar Association challenged these provisions in the Supreme Court. Late last year the Court struck them down.

Thereafter the government revised its scheme and brought it into force early this year through an ordinance styled as the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance. This, too, was struck down by the Court.

Meanwhile the government had placed before Parliament the Tribunals Reforms Bill to replace the ordinance. This was passed into law last month.

Congress leader Jairam Ramesh drew the Court’s attention to it through a public interest petition.   

Like the ordinance, the Tribunals Reforms Act altered the procedure for appointments to tribunals. It provided for the setting up of a Search and Selection Committee with the Chief Justice of India or his nominee as the chairperson and two government Secretaries as members to find qualified persons for appointment as tribunals under Central ministries.  A similar committee with the Chief Justice of the High Court or his nominee as chairperson is to select candidates for appointment to state tribunals.

The Act prescribes a minimum age of 50 years for appointment to a tribunal and provides for a fixed tenure of four years.

The Court frowned at these provisions. They were in the ordinance, too, and it had ruled that they were unconstitutional.

During a preliminary hearing on Jairam Ramesh’s petition last week Chief Justice NV Ramana asked the government why it had not appointed candidates whose names were recommended by the Selection Committee. Another judge observed that some tribunals are not able function as appointments have not been made.

The Executive and the Judiciary must ensure that their differences do not hamper the working of tribunals and harm the interests of the public.