Commissions and Omissions

How will the executive-judiciary tussle around appointments play out in the Bharatiya Janata Party’s third term?



Hello everyone! Welcome to SCO Explains. 

On 8 June 2024, the National Democratic Alliance (NDA) led by the Bharatiya Janata Party formed the government for the third consecutive term. Narendra Modi was sworn in as India’s Prime Minister once again. The run-up to the day was preceded by a two-month long election cycle spread over seven phases. 

In our previous video, we spoke to you about the different types of cases that reached the top court this election season. From petitions seeking to ban Prime Minister Modi from contesting in elections to petitions seeking a 100 percent verification votes cast through EVMs, the top court saw it all. 

In this video, I, Sai Spandana, am going to explore the incumbent government’s long standing battle with the judiciary—the present system of appointing judges to the higher judiciary and how this tussle around appointments will play out in the BJP’s third term. 

In 2014, the Bharatiya Janata Party’s election manifesto included a list of 22 ambitious reforms on the judicial front. One of those was the formation of a National Commission to recommend appointments to the higher judiciary.

Three months after it came into power, the Narendra Modi-led government followed up on its promise and introduced the  99th Constitutional Amendment Act which created a National Judicial Appointments Commission (NJAC). Its six members included the Chief Justice, two senior-most judges of the Supreme Court, the Union Law Minister and two “eminent” persons nominated by a committee comprising the CJI, Prime Minister and the Leader of the Opposition. Any two members of the NJAC could veto a recommendation.

In October 2015, the Amendment was struck down as unconstitutional by the Supreme Court in what is known as the Fourth Judges Case. Even as the decision acknowledged that the Collegium system could be made more transparent, it upheld the system, under which appointments to the higher judiciary are recommended by the five senior-most judges of the Supreme Court. The judgement set the stage for heightened tensions between the executive and judiciary. 

Since 2015, the Modi government has been called out several times for delays in notifying the recommendations of the Collegium. In 2016, then Chief Justice T.S. Thakur pleaded with the government to address the issue of judicial vacancies, which reportedly peaked at 45 percent in the middle of that year. Eight years later, 30 percent of the seats in High Courts continue to remain vacant

Also in 2016, the Thakur-led Court had sent back a draft Memorandum of Procedure for the selection of High Court judges on the ground that some clauses were “not in harmony” with the independent functioning of the judiciary. 

The battle lines were drawn in the open. Through his tenure, Law Minister Kiren Rijiju came down heavily—and publicly—on what he perceived as a lack of transparency and inordinate delays in appointments. His stand-off with the Supreme Court was surmised by many as the reason for his departure from the portfolio in May 2023.

In the last few years, the government has worked around Supreme Court decisions centred on tenures and appointments in institutions like the Central Bureau of Investigation, the Enforcement Directorate and the Election Commission of India. But the NJAC decision has proved harder to sidestep because of its constitutional implications  

Through all this time, the Court has stood its ground. In 2022, the Court reprimanded the Centre for not approving recommendations that had been reiterated by the Collegium. Last year, Chief Justice D.Y. Chandrachud defended the system stating that the Collegium applied “well-defined” parameters.

In the run-up to the 2019 and 2024 elections, the BJP’s promises on the judicial front were glorified footnotes at best, with not more than three points of reform. Neither manifesto mentioned a commission for judicial appointments. 

Last month, former minister Upendra Kushwaha stated that on returning to power, the NDA will make a fresh attempt to scrap the “undemocratic” Collegium system. The comment was made in the presence of Home Minister Amit Shah. On being sworn in as Law Minister, Arjun Ram Meghwal also reiterated his renewed interest in settling the Memorandum of Procedure for the judges appointment.

There are many moving pieces to this plot. For one, after CJI Chandrachud’s retirement in November 2024, the executive will interact with seven different Chief Justices. For another, the return to coalition politics in the 18th Lok Sabha might mean that the BJP will have to reprioritise its battles in the legislative and judicial arenas. It will be interesting to see how this tussle plays out in the third term.