by Harish Gupta, National Editor, Lokmat Group
The current logjam on higher judicial appointments has affected the entire judicial system. Its impact on the 28 high courts is grave. These courts of appeal in the states are particularly in the crisis zone with about half the sanctioned posts of judges lying vacant while four million cases are pending. Those to whom justice is delayed are mostly ordinary people, including many who are detained and awaiting trial, and many more who complain that they have been illegally dispossessed or harmed. Obviously with such hapless victims of the judicial system's failure in mind that Chief Justice of India T.S. Thakur made a rather startling remark on Prime Minister Narendra Modi's Independence Day speech, saying, "I was hoping he (Modi) will speak about issues plaguing the justice delivery system. However, he did not. I request the government to pay attention to our judiciary, especially appointment of judges".
But what exactly are the "issues"? While the courts' docket pressure is crushing—even the Supreme Court has over 60,000 cases pending—things have not reached the breaking point overnight. In 1987, the Law Commission observed that the judge-population ratio was languishing at 10 per one million people, which it recommended to be made 50. It is still languishing at 13. Therefore, the crisis has neither deepened nor alleviated. It has only continued, maybe with the pain multiplying as, according to one report, the number of judges has increased six-fold in the past three decades while the number of cases has shot up twelve-fold. But a prolonged shortage of judges could not have sparked a sudden trouble. It cannot be the issue per se.
The fact is that the judiciary and the executive are locked in an unflinching turf war. It took a new dimension with the Supreme Court shooting down as unconstitutional the National Judicial Appointments Commission (NJAC) Act that was designed to end the opaque and authoritarian power that the Indian judiciary had arrogated to itself, since the 1990's, of being the sole arbiter in making judicial appointments. What followed from the judgment in the NJAC case is an instruction to the government to prepare a Memorandum of Procedure (MoP). And the current tug-of-war is on the modalities of the MoP.
In it, the government wants priority to be given to chief justices of high courts for their "inter-se seniority" but the collegium of Supreme Court judges, which was the final arbiter in judicial appointment and is now negotiating on the judiciary's behalf, would like "seniority" to be given equal weightage, at best, to "merit" and "integrity". In other words, the collegium is opposed to give the green signal to each and every chief justice. The government says such obstruction is acceptable as long as the collegium puts in writing the reasons for their disapproval. The judges' have their rebuttal. Nothing ought to be in writing, they say, because it may become a "permanent blot" on his career. The reasoning is ostensibly laboured; if the concerned chief justice is a weak judge, who are the selectors helping by allowing him to occupy the top chair in a high court bench with no blot on his gown?
The collegium is also averse to putting on paper anything of substantive significance about its decisions concerning transfer and appointment of judges. If the collegium members have discovered "outstanding merit" in a candidate for appointment, the government wants further amplification of the testimonials as its absence leaves scope for favouritism. But the collegium is not impressed. It'd rather stick by a 1998 judgment of the Constitution Bench which empowered the collegium to appoint as judge anyone of "outstanding merit" regardless of his ranking or seniority or unexplained merit. But the government says its bound by the verdict of the Constitution bench which negated the NJAC and at the same time recommended that government will formulate the MoP. If the MoP is in the cold-storage, so let it be and bring the judicial appointments to a halt, at least this is the stand of the Modi government for the present.
However, the biggest and potentially most damaging dispute is over the setting up of a secretariat to "assist" the collegium in selecting or rejecting candidates for judicial appointment. With the level of transparency that the executive is now demanding of the collegium, it is quite obvious—or at least that's what the judges fear—that the 'secretariat' may end up being the listening post of the government for all sorts of comparing of notes and exchange of information among the Supreme Court's five top judges. The collegium has indicated that it has nothing against the secretariat in principle, provided its control and management remained with the Chief Justice of India.
The crisis has neither deepened nor alleviated. It has only continued, maybe with the pain multiplying as, according to one report, the number of judges has increased six-fold in the past three decades while the number of cases has shot up twelve-fold.
The gist of the story is: as a fall-out of the three cases on judges' appointment and transfer—1981, 1993 and 1998—the power that the top judiciary obtained to appoint their successors is being challenged by the executive in an arena more public than the court room, with the exchange of angry notes between his lordships and the politicians increasingly liable to public exposure. That endangers a fairly strong pillar of the republic in two ways: by removing the screen behind which the judges shape their own world, it makes them accountable to the general public much in the same way politicians are; on the other hand, it gives politicians enough ammunition to keep the judiciary in fear.
In an article, former Delhi University vice-chancellor and eminent jurist Upendra Buxi has emphasised the inherent lack of trust between India’s judiciary and executive and called for a “wise management of mistrust”. The executive probably thinks that judiciary could outsmart them due to weakness of political parties—the Emergency made Indira Gandhi over-sensitive to courts, and the 1990’s were an era of shaky coalitions—but the table has now turned. They should not forget that the Indian Constitution is not just about parliamentary numbers; it also includes inviolability of the rule of law.
