There is no denying that the judiciary is losing credibility and is fast catching up in that negative aspect with other institutions which form the edifice of the country’s democratic structure. The virtual revolt by four senior Supreme Court judges against Chief Justice Dipak Misra, the imprisonment of Justice Karnan of the Kolkata High Court for six months on a Supreme Court ruling holding him guilty of contempt of court after the judge’s pronouncements shocked the nation, the opposition’s abortive move to impeach the CJI, the ongoing controversy on where the final power vests for appointment of judges have all added up to a crisis of confidence in the judiciary, and an uneasy relationship between the judiciary and the executive. There are divergent views emerging from within the judiciary and an atmosphere of distrust between the government and the judiciary. That all this bodes ill for the country’s traditionally most respected and revered institution can hardly be brushed aside as inconsequential. That no less than the chief justice of India has been dragged into the controversy is a matter of grave concern for all those who value democracy and the rule of law.
The latest salvo in the controversy has been fired by Justice Kurian Joseph who, in a strongly worded letter to the chief justice and other apex court judges has sought a full court meeting to discuss the Centre sitting on the collegium’s recommendations for appointment of some judges. Justice Joseph sends a wrong message to all judges down the line (from the executive) not to cause any displeasure to the executive (the reference is to the non-clearance of Uttarakhand chief justice K M Joseph’s elevation to the apex court) ostensibly because he had struck down the BJP-backed coup against the erstwhile Congress government in Uttarakhand. Evidently, what Justice Kurian Joseph had in his letter to the CJI sought was a virtual no-holds-barred power to the collegium, which the Central government is strongly opposed to. This was close on the heels of Justice Chelameswar’s letter to CJI stating that the government was being selective in accepting recommendations of the Supreme Court Collegium for the appointment of judges to high courts. “It chooses to ignore or defer the names it finds uncomfortable, thereby affecting the independence of the judiciary.”
The argument against untrammelled power to the collegium is that the Constitution had provided for a system of checks and balances whereby no institution may have an absolute hold and there is due accountability of every institution including the judiciary. That indeed cannot be brushed aside, though, there is a strong case for the government of the day not to stall appointments on partisan considerations at a time when there is a major shortage of judges all across the judiciary. It is incumbent on the two pillars of democracy to show the right statesmanship and spirit and not get bogged down in trivialities and in avoidable bickering. Indeed, in the ongoing battle between the executive and the judiciary, the Narendra Modi government has now accused the Supreme Court of encroaching into the legislative domain while diluting the stringent arrest provisions of the SC/ST (Prevention of Atrocities) Act. The Modi government rubbed it in when it said in the apex court on Thursday that the Supreme Court erred on two counts—one, it diluted the provisions of the law by stepping into the shoes of legislators and then by compounding the matter by warning police officers of contempt of court if they acted as per the stringent provisions of the SC/ST Act. In substance, it criticised the Supreme Court’s alleged foray into legislative domain.
All this acrimony between the two pillars of democracy is damaging the edifice on which our system is based. It is time the judiciary and the executive patch up their differences and come to a fair and equitable agreement on respecting time-tested conventions. The rancour that exists today cannot but be to the detriment of the country and its people. The ‘appointment of judges’ issue has been festering for long. It needs to be addressed upfront and with requisite maturity. The Supreme Court has seven vacancies and six more judges are due to retire this year. If the system of appointment of judges is not settled to the satisfaction of both sides over the next few weeks, lasting damage would be caused to the institution on which rule of law rests in the country. With inordinate delays in courts striking at the roots of justice, people at large are turning cynical and sceptical about the efficacy of the justice delivery system. As per the information made available by the Supreme Court to the Union Ministry of Law and Justice, the total number of pending cases in the apex court, as on December 18, 2017, was 54,719. On average, 1.65 lakh cases are pending in every high court. This is too serious to be overlooked.