NEW DELHI: The upheaval within the Supreme Court (SC) Collegium, with four of its members publicly rebelling against the CJI, appears to have triggered discussions among government and political circles about the possibility of a Presidential Reference to SC on whether recommendations by the splintered body should be binding.
A day after the unprecedented press conference by four senior SC judges — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurien Joseph— with not-so-subtle political undertone, political as well as legal circles were debating the possibility of the government using the tumult in the top court to seek clarity on whether the recommendations of a badly divided Collegium on appointment of judges of the Supreme Court and high courts is obligatory.
The Collegium, a body comprising the Chief Justice and four next senior-most judges of SC, has an exclusive say in the appointment of judges of the apex court and HCs.
The apex court is opposed to dilution of its "monopoly" on appointments and struck down the law unanimously passed by Parliament during the Modi government's tenure to set up a National Judicial Appointments Commission (NJAC) to broaden the process of recruitment of members of higher judiciary.
Government sources feel that the mutiny by CJI's four senior-most colleagues against him raises the important constitutional issue of the "sanctity" of such a Collegium. "The Collegium system appears to have become unworkable," said a source.
The revolt came a day after all the four judges concerned signed minutes of meeting of the Collegium that recommended to the government to appoint senior advocate Indu Malhotra and Uttarakhand HC chief justice K M Joseph as judges of the SC.
If the government decides to make a such a reference to the SC, it would be sent by the President to the Chief Justice of India under Article 143(1) of the Constitution, which says - "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon."
On the process for appointment of judges, which was partly taken over by the SC through a judgement in 1993, former President K R Narayanan on July 23, 1998 had sent a Reference under Article 143(1) raising perceived doubts about the conflict between the SC-prescribed mode for appointment of judges to the apex court and HCs and that mandated under the Constitution.
A 9-judge bench, which did not include the then CJI, gave its opinion on the Presidential Reference on October 28, 1998, further fortifying the SC's firm grip over the selection of candidates for appointment as judges to the constitutional courts and virtually shutting the government's role in judge selection process.
Prior to the SC taking over the selection process, the appointments were made by the government under Article 124 of the Constitution, which said: "Every Judge of the Supreme Court shall be appointed by the President.. after consultation with such of the judges of the SC and of the High Courts as the President may deem necessary for the purpose.." It also said: "Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted." This had given the Indira Gandhi government the chance to supersede SC judges and appoint chief justices of its choice twice, one prior to the Emergency and one in the post-Emergency era.
Legal circles saw these discussions within government circles as only a threatening posture to the SC, which had quashed NJAC. However, they said a divided SC would always encourage the government and politicians, who are the biggest litigants, to interfere in the independence of judiciary.