A welcome climbdown

The judiciary-executive tussle over the Memorandum of Procedure (MoP), which lays down guidelines for the appointment of judges at the higher level, has come to an end, paving the way for filling vacancies in high courts. While setting aside the law to replace the existing collegium system with a National Judicial Appointments Commission, a Constitution Bench headed by Justice JS Khehar had suggested a revision of the MoP by the NDA government to ensure greater transparency in the system of judges selecting judges. In the process differences rose which kept the MoP shuttling between the judiciary and the executive for about a year. Objections finally narrowed down to two clauses. 

One was over the government granting itself the power to turn down any collegium recommendation on the ground of national security. The context was different then. Under Chief Justice TS Thakur the Supreme Court had put its foot down on this issue. In fact, so bitter became the government-judiciary relations that CJI Thakur went public, berating the executive for sitting over the collegium's decisions. The Centre cussedly refused to appoint 43 of 77 names recommended by the collegium. However, under Chief Justice JS Khehar the relations have normalised. While accepting national security and public interest as a new ground for objection to a judicial appointment the judiciary has made it clear that the collegium will have the final say in appointments. Two, the judiciary has also conceded the executive demand to set up secretariats in the Supreme Court and the high courts to provide assistance in the selection of judges. 

Though the collegium has ceded a little, it has kept intact judicial independence. It has refused to accept another controversial executive demand for having committees of retired or sitting judges to assist the collegium in finding suitable candidates. The government too has not insisted on having its way and rightly put an end to needless confrontation. The judiciary's primacy in judicial appointments remains unaffected though opinion may be divided whether that is part of the basic structure of the Constitution as was claimed by the Constitution Bench headed by Justice Khehar.