Law minister Ravi Shankar Prasad

Till 1990, post offices and postmen were integral to people’s lives. Inland letters, post cards and telegrams brought happiness, sorrow, cheer and tears. Advancement in modes of communication, especially the arrival of mobile phones and internet-based social media spelt the doom for post offices and letter writing.

After voters reaffirmed their faith in the BJP-led NDA government headed by Narendra Modi , politics has breathed life into post offices. Cashing in on the irritability of West Bengal CM Mamata Banerjee to chants of ‘Jai Shri Ram’, state BJP workers are sending her thousands of ‘Jai Shri Ram’ inscribed post cards. It is difficult to assess whether this political move will raise postal revenue but it will remind many of the nostalgia of post cards, now a dying species, and the postman, romanticised in novels and movies.

Post office was referred to by lawyer-cum-politician Ravi Shankar Prasad after assuming charge of the law and justice ministry last week. On appointment of judges, he said, “As law minister, I will not be a post office simpliciter. The law minister and the law ministry has a role as a stakeholder, obviously giving due regard and respect to the collegium system. But as law minister, neither I nor my department will remain a post office. We have a stake and we shall continue to pursue that stake in consultation with the Supreme Court and high courts to expedite appointments.”

It was less a statement and more a protest against the manner in which the SC, through two judgments in 1993 and 1998, took over the process for selection of persons for appointment as judges of constitutional courts.

Prasad was signalling to the CJI-headed collegium comprising senior SC judges that the law minister and the ministry would no longer just receive and implement the collegium’s recommendations.

He also appeared to be venting the NDA government’s frustration over the SC’s 2015 decision to strike down a constitutional amendment, passed in Parliament with unanimity among political parties, to establish National Judicial Appointments Commission (NJAC). The aftermath of the judgment saw an unsavoury stalemate between the executive and the judiciary over appointment of judges to the SC and HCs.

The collegium led by then CJI H L Dattu had recommended 75 persons for appointment as judges in various high courts. The government stalled 20 names. The collegium led by then CJI T S Thakur recommended 185 names for appointment as HC judges. Though law minister Prasad took credit that year for creating a record by appointing 126 HC judges, the fact remained that 59 names were held back or returned to the collegium for reconsideration.

The story hasn’t been different for succeeding CJIs. Of the 94 names recommended by Justice J S Khehar-led collegium, the government held back/returned 36 names for reconsideration. During CJI Dipak Misra’s tenure, the Centre held back/returned 55 of 97 recommended names for reconsideration.

If the postal department had such a statistical record, that is if only 126 of 185 letters reached their destination, the people would have lost faith in it. So, Prasad was wrong in comparing himself and his ministry to a postman or post office. As for the message he wanted to deliver, he already did that effectively in his last tenure by withholding or seeking reconsideration of recommendations for appointment as HC judges.

Five years ago, Prasad had introduced the 121st constitutional amendment bill in Parliament for establishment of NJAC comprising the CJI, two most senior SC judges, law minister and two eminent persons to be selected by a panel of CJI, PM and leader of opposition.

In his speech in Parliament, Prasad had made no bones about his discomfort with the 1993 and 1998 SC judgments which, according to him, reduced the executive to mere ‘post office’ in appointment of judges. The two SC judgments took the drastic step of introducing collegium system mainly to maintain independence of judiciary and insulate it from political interference, which was experienced too often during the Congress governments headed by Indira Gandhi, including the unholy supersession of most senior judges.

Prasad had said, “All of us want independence of judiciary and give respect for that. But when I say ‘independence of judiciary’, I must reiterate that the sanctity of Parliament is equally important… supremacy of Parliament is equally important. While I say that independence of judiciary is important, separation of power is equally a basic structure, it is also part of the Constitution.”

Prasad referred to a Law Commission report to summarise his disillusionment with the judge-appointing-judge system. “The Union law minister is accountable to Parliament for the delay in filling up of vacancies of judges, but he has functionally no contribution to make. The SC read into the Constitution a power to appoint judges, that was not conferred upon it by the text or the context. The underlying purpose of securing judicial independence was salutary, but the method of acquiring for the court, the executive power to appoint judges, by the process of judicial interpretation is open to question,” the commission had said.

The commission was right, the law minister is accountable to Parliament for speedy filling up of vacancies. Who else as he is the sole interface between the collegium and the executive? To remain answerable to Parliament is a healthy requirement in a democracy. The minister should not mind even if the executive has a diminished role in selection of judges.

Prevalent procedure, as laid down by the SC judgments, articulates and defines the role of the CJI, the collegium and the executive.

But to cite ‘post office’ to portray himself and the executive as inconsequential in the process for judges’ appointment could possibly be interpreted to mean that the Modi-led government, having returned with a bigger mandate, is preparing afresh to establish an NJAC-like mechanism to dismantle the judge-appointing-judge system. Did Prasad mean to convey this?

