BENGALURU - A confrontation is brewing between the Indian federal government and the country’s Supreme Court over judge selections.

The appointment of more than 100 judges to India’s high courts and Supreme Court is pending approval by the government. They were recommended by a collegium, the current system of appointing judges. Legal experts and judges have said that the government-judiciary tussle will affect the quality of judges who are eventually appointed.

In recent months, the federal Law and Justice Minister Kiren Rijiju has been openly criticising the system of choosing judges, wanting the government to have more say in the choice of candidates. 

Since a Supreme Court ruling in 1993, the appointments and transfers of judges to India’s higher judiciary are decided by a collegium of senior judges. Appointments to the Supreme Court – the country’s highest court – are decided by the five most senior judges of that court, while appointments to the high courts are made by the three most senior judges of those respective courts. The Supreme Court collegium communicates decisions to the central government, which is expected to approve them.

A person who has served for 10 years as a lawyer in a high court, or held a judicial office for 10 years, qualifies to be a high court judge. A lawyer with 10 years experience’ in the Supreme Court, or five years as a high court judge, is eligible to be appointed as a judge in the Supreme Court. By convention, only judicial candidates older than 45 are considered for the high courts and over 55 for the Supreme Court.

The Supreme Court has a sanctioned strength of 34 judges, with six vacancies and nine retiring in 2023. In the 25 high courts in India, where a total of 1,108 judges are sanctioned, about 30 per cent are vacant as at Jan 2.

When Prime Minister Narendra Modi came to power in 2014, his government tried to increase executive involvement in judge selection. It passed a law that set up a National Judicial Appointments Commission (NJAC) comprising both judges and politicians. But the Supreme Court ruled it unconstitutional.

Retired Justice Kurian Joseph, one of five judges who ruled on the NJAC, wrote then: “If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the Constitution.” He was referring to keeping the judiciary and executive independent.

Since then, the central government has not easily accepted the collegium system, often sending back recommendations and asking for them to be reassessed. At other times, it has simply sat on names.

The government has yet to approve Mr Saurabh Kirpal, an openly gay advocate, whom the collegium recommended in late 2021 for elevation to the Delhi High Court as a judge. In an interview last November, Mr Kirpal said: “The reason is my sexuality. I don’t think the government necessarily wants to appoint an openly gay person to the bench.”

Other competent lawyers unwilling to wait indefinitely have also withdrawn their names, such as Bengaluru-based senior advocate Aditya Sondhi, who was recommended as a judge for the Karnataka High Court in February 2021.

Neither the government nor the collegium gives the candidates reasons for its recommendations, delays or rejections.

In December, Mr Rijiju called the collegium opaque and unaccountable and sought a “new system”.

Vice-President Jagdeep Dhankar called the striking down of the NJAC law “a glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people”.

A Supreme Court bench hearing petitions on the delayed appointments of high court judges warned that government comments on the collegium system were “not well taken”. Justice Sanjay Kaul said that the state keeping names on hold was creating an environment where “meritorious persons were now hesitant to give consent” to be appointed to the higher judiciary. 

The renewed criticism of the collegium coincides with the appointment of new Chief Justice Dhananjaya Chandrachud, who has a known record of upholding individual rights and civil liberties even when it does not sit well with the government. 

Opposition leaders say they are wary of the government’s motives. Congress politician Jairam Ramesh said it seemed like the Modi government wanted to bring NJAC back, or “at least keep the threat of it alive to get the judiciary to fall in line”.

But the federal Law and Justice Ministry has accused the collegium system of appointing a higher judiciary with no social diversity. Nearly four of five high court judges appointed since 2018 were from dominant caste groups, the ministry told a parliamentary panel.

Religious minorities, who form about 20 per cent of the population, made up less than 3 per cent of 537 high court judges. Only 4 per cent were judges from lower caste and tribal communities, although they form almost a quarter of the population.

In November 2022, Chief Justice Chandrachud conceded that the collegium system is flawed, but said it was the law of the land. “We need to strengthen the collegium system by ironing out the creases and by being responsive to criticism. Dealing with such issues requires constitutional statesmanship and not public grandstanding,” he said.

On Jan 6, the government assured the Supreme Court that it would clear 44 of 104 recommendations made for high court judge appointments this week.

Justice Kaul told the attorney-general representing the government that “all shades of opinion should be reflected” in court, and it cannot pick and choose based on the assessment of judgments whether they are aligned with the government or not. The next hearing on the matter is on Feb 3.