Chief Justice of India Tirath Singh Thakur is miffed and doesn’t care who knows it. He rapped Prime Minister Narendra Modi sharply on the knuckles for failing to touch on the contentious matter of judicial appointments in his Independence Day speech. Rightly so, given that – with 20 million cases pending in the courts – there simply aren’t enough judges to go around. And by stalling further appointments, the government is exacerbating an already serious problem.
For its part, the government is sulking because the apex court gave a thumbs down to the NJAC or National Judicial Appointments Commission, a cherished notion of the executive. After a couple of decades of having no say whatsoever in the appointment of judges, politicians felt it was high time they asserted themselves. The UPA government mooted the idea of the NJAC and went so far as to move the Bill. The NDA went one step further and passed it. Naturally, the Supreme Court struck it down as unconstitutional (while directing many pithy comments at attorney general Mukul Rohatgi).’
THE chief problems with the legal community have little to do with the question of who appoints the judges.
Justice Thakur has repeatedly emphasised the necessity of filling up judicial vacancies. It isn’t just the ordinary litigant who suffers, but business interests as well. If the Indian legal system takes forever to resolve disputes, who will want to Make in India?
The Indian judiciary and executive have an uneasy relationship. After all, keeping the government in line (with the Constitution) is part of the apex court’s job description. It’s never a good idea for the government of the day to take an adversarial stand vis-a-vis the Supreme Court, because it’s bound to lose. Especially when it comes to the subject of judicial appointments.
The Emergency taught us that a pet judiciary cannot safeguard civil rights. Thereafter, the Three Judges Cases established the collegium system, whereby a panel of judges headed by the Chief Justice of India makes appointments to the higher judiciary, rather than the Union Cabinet or any other constitutional authority. The post of CJI is reserved for the seniormost judge of the Supreme Court, eliminating any possibility of the executive attempting to push its own candidate for the top job.
Of course, the executive can ask the collegium to rethink an appointment, but finally, it’s the call of the CJI and the four seniormost judges of the Supreme Court. By dilly-dallying on clearing the files sent by the collegium, the executive appears to be trying to provoke the judiciary into an unseemly showdown.
Granted, the collegium system has its drawbacks. With judges appointing judges, there’s a possibility of nepotism and cronyism, with some bad apples slipping through the screening process. But it is a lot better than turning the judiciary into a handmaiden of the executive – or of the legislature. Fortunately, acts of Parliament are subject to judicial review. For instance, the landmark Kesavanand Bharti vs State of Kerala case ensured that elected representatives could not mess around with the basic structure of the Constitution.
The chief problems with the legal community have little to do with the question of who appoints the judges. As has been pointed out, the country needs to increase its judicial strength by at least 70,000 to clear the tremendous backlog of cases.
And in the Supreme Court and High Courts, legal fees need to be scaled down. Currently, they follow the demand and supply dynamic. Once a case reaches the Supreme Court, the available pool of lawyers becomes highly restricted. Certain legal eagles are a must-have for certain benches, leaving the litigant with no option but to shell out. Corporates stuck with cases which have huge financial implications are happy to pay and jack up the rates sky high. What about the ordinary Joe? If he doesn’t pay for a high-profile lawyer, his case may never be admitted. If he does – and loses – he bankrupts himself for nothing!
Of course, there is scope for nepotism in legal circles, with several generations of laywers in the same family – some of whom may be elevated to the bench. In fact, it becomes hard for young lawyers who do not have relatives in the business to establish themselves, unless of course they are mentored by a senior counsel.
It is for the judiciary to fix the problems of pendency and high legal fees. The executive must cooperate in this regard rather than make matters worse, if for no other reason than to safeguard the citizens’ right to justice.
