Judicial appointments in India are rarely subject to controversy. At least that has been the case since the lifting of the Emergency declared by the Indira Gandhi Government. This is also partly because, post that era, governments have been wary of asserting themselves when it comes to judicial appointments. As the system currently works, the collegium sends a name to the Centre. The Centre, if it accepts the recommendation, advises the president to confirm the appointment. If it finds the candidate unsatisfactory, it sends the recommendation back with its reasons. If the collegium refuses to consider the Centre's recommendation, the judge is confirmed.
The Centre therefore has the power to request a reconsideration of a particular name. This becomes pertinent, given the fact that the Centre has sent back the name of Justice KM Joseph to the collegium for reconsideration. Justice Joseph is the current chief justice of the Uttarkhand High Court.
The Centre in its reasons has said that there are other judges in the seniority list and that there is little representation from other judges of other high courts in this list. This is problematic, because it assumes that the Supreme Court is an institution that is required to represent the diversity of the high courts. In effect, it implies that according to the Centre, the Supreme Court is essentially a creature of all the high courts combined.
This is not the case. The Supreme Court and the high courts under India's constitutional scheme are two very distinct entities and possess very different powers. The high court's jurisdiction is exclusive of the Supreme Court's jurisdiction. For example, Article 226/227 that applies to the High Court envisages much broader powers than those that the Supreme Court has under Article 32.
That being the case, the appointment of judges should not be about regional representation but should be a decision on their competence to serve as judges.
Under the Constitution, there is no requirement to maintain regional representation in the Supreme Court.
But what makes this more problematic, is that the requirement of regional representation fails to take into account that most high court judges serve in more than one high court. This means that they end up with diverse experience in their course of service as it is. This author will concede that there are incidents when a Supreme Court judge will be faced with a matter concerning the law of a state that he is not familiar with. For example, Maharashtra's labour law is starkly different from the laws in other states, Maharashtra being a highly industrialised state. But because India's legal system is uniform, there is no need to have specific regional representation in the Supreme Court as all judges are competent to rule on all manner of legal disputes.
There may be a case for the Centre to return a recommendation at times. These circumstances will exist. But a request for reconsideration on the grounds of seniority and regional representation holds little water when it comes to sound reasons for reconsideration.
Which is why it seems like a political attack. It needs to be clarified that the Centre does not have the power to reject a recommendation of the collegium. It can only ask the apex court to reconsider. If the gulf between the Centre and the judiciary continues, it will be interesting to see how the collegium responds.
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Updated Date: Apr 28, 2018 16:32:23 IST