‘Perestroika in Judiciary’ was the front page title in the New Indian Express dated September 2nd 2016. I thought this was yet another high profile drama between the Executive and Judiciary. But interestingly, this time it is Justice Chelameshwar of the Supreme Court (a member of the Collegium of judges that appoints Judges) who has come out openly against the Supreme Court’s collegium system of appointment of Judges.
Unexpectedly, he had refused to attend the Collegium meeting the previous day citing lack of transparency as nothing discussed in the Collegium remains on record. This comes when the CJI lashed out at the PM for not whispering a word on the issue of appointment of Judges in his Independence Day speech.
As an embarrassing development, the CJI broke down in the joint conference of Chief Ministers and Chief Justices in April over the ‘inaction’ of the executive in filling up the vacancies. It is true that the large number of vacancies in the higher Judiciary is likely to result in the growth of Khap Panchayats in settling people’s problems. But who is to be blamed?
Article 124 of the Constitution of India provides that the Judges of the Supreme Court shall be appointed by the President (‘Council of Ministers headed by the Prime Minister’) after consultation with such of the Judges of the Supreme Court as the President may deem necessary. It further provides that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 that speaks of appointment of judges of the High Court is identical to this provision.
A plain reading of the above provision shows that the Executive has been given primacy in the matter though the role of Chief Justice and other Judges has not been brushed aside. In almost all written Constitutions across the world, the appointment of Judiciary is made by the Executive. This is in line with the principle of check and balances in exercise of powers among the various institutions.
Since under all written Constitutions the Judiciary is vested with the power to interpret the Constitution and keep all authorities within their legal confines, it is equally important to preserve the independence of Judiciary. In the past, independence of judiciary has come under severe attack by the executive and legislative wings. But by interpreting the Constitution and laying down doctrines, the Judiciary preserved its power of Judicial Review of all executive and legislative actions in India.
However, the biggest attack came in the form of judicial appointments. Though conventionally, the senior most Supreme Court judge was appointed as the CJI, Justice Khanna paid his price when his junior Justice Beg was appointed as the CJI. He had authored the lone dissenting judgment in the popular Habeous Corpus case in which he declared detention of politicians during emergency as illegal and unconstitutional.
In order to prevent such incidents from recurring, the Supreme Court of India devised the collegiums system of appointment of Judges. The expression ‘consultation with the Chief Justice’ was interpreted to mean ‘Concurrence with collegium consisting of four senior most Judges headed by the CJI’. Since then the Judiciary has been playing the primary role in appointment of Judges and the executive has been reduced to mere ‘clearing agent’. Though this has put an end to political appointments, the Collegium is not fault-free.    
In the first place, the Constituent assembly debates show that the framers of the Constitution never contemplated total neglect of the role of executive. It is against the doctrine of ‘separation of powers’ on which the Constitution is built. Secondly, there is no transparency in the working of the Collegium. The public is totally unaware of whose name is considered for appointment, what are the parameters followed in selecting one person over the other etc., The Supreme Court has also made clear that the process is completely outside the scope of the RTI Act, 2005 though appointments under the PMO and Rashtrapathy Bhawan are accessible.
In its landmark Judgment, the Supreme Court recently struck down the Constitutional amendment that established National Judicial Appointments Commission to make recommendations in the matter of appointment and transfer of Judges of the Supreme Court and the High Courts as it affected the ‘independence of Judiciary’. It is important to note that Justice Chelameshwar was the lone dissenting judge in the bench that struck down the amendment.
Justice Chelamshwar, in his dissenting judgment wrote: “Transparency is a vital factor in constitutional governance. Transparency is an aspect of rationality. The need for transparency is more in case of the appointment process. Proceedings of the Collegium were absolutely opaque and inaccessible both to the public and history, barring occasional leaks.”
Testimonially, Justice (retd) Markandey Katju has now remarked that: “Some of the worst appointments in the Supreme Court and High Courts have been made by the Collegium system due to its lack of transparency and opaqueness… I call it the ' You scratch my back, and I will scratch your back ' system. Justice A tells Justice B ' You support my man, and I will support your man '. In other words, before the formal meeting of the Collegium bargains are done between the members of the Collegium to get their men selected.”
It is to be seen that in India, no authority can act arbitrarily. Even the Supreme Court recently held that appointment of Government Counsels should be rational though such appointments are professional and contractual in nature since they involved public money. Refusing to apply the same to Judicial appointments defies law and logic.
The NJAC consisted of 6 members headed by the CJI, of which two were senior most judges of the Supreme Court. The other three members included the Law Minister and two other members to be appointed by a committee consisting of the CJI, Prime Minister and the Law Minister. The Commission consisted of equal number of members of Judiciary and Executive, while the commission itself was headed by the CJI. The NJAC provided an opportunity to end the decades old confusion giving equal role to the executive and judiciary. It could have rendered the appointments transparent.
After the NJAC verdict, the Supreme Court directed the Government of India to come up with ‘Memorandum of Procedure’ in making judicial appointments. Since then the Court has rejected several MoPs suggested by the Government though the latter has compromised so much on its role on the matter.   
In a recent interview with the news channel CNN-News 18, the Prime Minister stated that ‘There is no scope for any confrontation or tension with any constitutional institution. There must be warmth with Judiciary as needed for constitutional decorum. I try my best to maintain as much decorum as possible.”
I am still unable to answer who is responsible for the stalemate in the appointment of judges – the Executive or the Judiciary?