The running battle between the Government and the judiciary over the appointment of judges reflects poorly on both — and therefore must cease immediately. But given how both sides seem to have dug in their heels, we get the feeling that relations between the two are bound to be further embittered before a ceasefire can be called. For, truth be told, neither side is completely innocent. In the early years of the Republic, it was the Government which had abused its dominant position to appoint judges to the High Courts and the Supreme Court, a number of whom were controversial. Then, in a questionable reading of the Constitutional clause pertaining to the appointments, the judges virtually assumed complete power, reducing the role of the Government to a letter-box which must be informed about the decisions but cannot overrule them should a select group of judges re-endorse them.
It is this ding-dong battle between the Government and the judiciary which was meant to be addressed by the National Judicial Appointments Commission passed unanimously by Parliament. However, the court nixed the NJAC, declaring it to be unconstitutional on the grounds that it gave the Government the final say and therefore undermined judicial independence. The judgement reeked of selfishness, especially when it allowed the judges the final say in the matter of appointments. In no other democratic country do judges appoint judges. But the judges were unwilling to share power with the executive and the independent notables who together were to constitute the six-member NJAC envisaged in the Constitutional amendment. They would rather continue with the present system under which they propose and the Government notifies the appointment, barring in those cases where the Government has some objections. Here too, once their Lordships nix the Government’s objections the latter is left with little option but to notify the appointment.
That the Government is unwilling to accept a secondary role becomes clear from the verbal attacks on the current system of appointment by two top dignitaries. In the Rajya Sabha, the Vice-President and Chairman of the House, Jagdeep Dhankar launched a broadside against the judiciary for appropriating the power of appointment, undermining the democratically-elected Government. The logic was simple: In a democracy the people were supreme and they spoke through the ballot box, empowering the Government to act on their behalf. In this line of reasoning the judges were interlopers, usurping the popular mandate. A few days later, Law Minister Kiren Rijiju picked up the thread from where the RS Chairman had left off, to launch a scathing attack on the judiciary, linking the pendency of over five crore cases to the ‘opaque’ system of judicial appointments. He squarely blamed the judges for the huge number of vacancies at all levels of the judicial structure which in turn had caused the unconscionably long delays in the disposal of cases.
Of course, the Law Minister was exaggerating the role of vacancies in the huge backlog of cases, when the truth is that it is a reflection of systemic flaws in our justice administration. Aside from the low provision of judges per capita, the arteries of the legal system are clogged the most by Government-related litigation. In any case, aside from the propriety of the Law Minister using the Parliamentary forum to berate the judges, his remedy of courts cutting down holidays is hardly an answer to the huge pendency of cases. Mr Rijiju should not further aggravate matters by publicly criticising the judiciary. Since the judges too have felt obliged to respond in kind while presiding over proceedings in the apex court, there is a real danger of a Constitutional dispute degenerating into a slanging match, bringing disrepute to both. Meanwhile, it is opportunistic of the Opposition that it is shying away from supporting the NJAC, which it had backed earlier. A principled stand on a matter which concerns justice for tens of millions of litigants should not be turned into a political football. The Opposition should stand by the NJAC. Partisanship in resolving a constitutional dispute should be abjured.
