SC Collegium Row: Why There Must Be A Middle Ground | UnBreak the News with Prema Sridevi | Ep: 107

The tussle between the judiciary and the executive over the Supreme Court Collegium issue has taken a new turn. Recently, the government asked the Supreme Court Collegium to reconsider 20 files related to the appointment of High Court judges, including advocate Saurabh Kirpal who spoke about his gay status.

Earlier, without naming Union Law Minister Kiren Rijiju, the bench of justices Sanjay Kishan Kaul and AS Oka expressed reservations over the comments of the minister on the collegium system. So, what is this tussle all about, and why is this rift between the centre and the judiciary concerning? Prema Sridevi UnBreaks this News for you!

(Produced below are the abridged version of the transcripts of the video explainer from Episode: 107 | UnBreak the News with Prema Sridevi | Title: SC Collegium Row: Why There Must Be A Middle Ground)

The tussle between the judiciary and the executive over the Supreme Court Collegium issue has taken a new turn. Recently, the government asked the Supreme Court Collegium to reconsider 20 files related to the appointment of High Court judges, including advocate Saurabh Kirpal who spoke about his gay status.

Earlier, without naming Union Law Minister Kiren Rijiju, the bench of justices Sanjay Kishan Kaul and AS Oka expressed reservations over the comments of the minister on the collegium system. So, what is this tussle all about, and why is this rift between the centre and the judiciary concerning? Let’s UnBreak this News!

“There are loopholes in the Collegium system, and people are now raising voices that the Collegium system is not transparent, there is a bit of opacity, and there is no accountability,” said Union Law Minister Kiren Rijiju to a TV channel at a summit.

He was responding to a question on the collegium system and the ensuing delays in judicial appointments. Continuing his attack on the collegium system, the Union Law Minister asked the judiciary not to say that the government was sitting on the files. He said, “then appoint judges yourself, and you run the show”.

Rijiju’s continued criticism of the collegium system did not augur well with the Supreme Court. Responding to his attacks, addressing the Attorney General, Justice Kaul expressed his displeasure over the comments of the Minister. After the Centre rejected 20 names of High Court judges and asked the Supreme Court to reconsider the 20 files, the Supreme Court said that the Centre could not hold back names without exactly mentioning its reservations.

The bench said: “You cannot hold the names back without stating your reservations. I did not comment on the High Court names since four months had not elapsed, but these names have been pending since 1.5 years. You are frustrating the method of appointment. We only issued notices to find out the problem.”

Amongst the 20 cases that were being discussed was also the case of advocate Saurabh Kirpal who had openly spoken about his gay status. Last year, the Collegium headed by then Chief Justice of India NV Ramana had recommended the elevation of Saurabh Kirpal. In an interview with a news channel, Kirpal alleged that perhaps the government did not clear his name because of his gay status.

As the confrontation between the executive and the judiciary continued, the Supreme Court on Monday indicated that the government is perhaps holding back some of the appointments because it is not happy about the apex court striking down the National Judicial Appointments Commission, which the Modi government established as a replacement to the collegium system. Under the current norms, the government can ask for reconsideration of a collegium’s recommendation, but they are bound to clear it if reiterated. The convention is that the entire process must be completed within four months of the first recommendation.

The collegium system has its roots in the three cases called the “judges cases” in India. In 1981, in the “first judges case”, the judges suggested that the executive must have primacy over deciding on judicial appointments. In 1993, in the “second judges case”, it was said that the CJI must be given priority in such appointments. This was again reiterated in the “third judges case” in 1998.

Since then, the collegium system has taken over the appointment of judges. But the ongoing tussle between the centre and the judiciary will have much larger implications that go beyond the judges’ appointment, as we saw in the case of the appointment of the Election Commissioner. Law experts say the only solution to this is to give neither the judiciary nor the executive the primacy but have a system in place that makes both the executive and the judiciary accountable for their decisions.