When the Supreme Court struck down the National Judicial Accountability Commission (NJAC) passed by both houses of parliament amid almost unanimous rejection of the collegium system, only the naïve could have believed that it would not lead to confrontation with the Modi Sarkar. This government has come down heavily on other dissenting lesser mortals. It would be fair to say that this government is least accommodating when it comes to non-conformism. By rejecting the NJAC the apex court may well have been within its constitutional rights, but then it was clearly non-conformist.
So, it is hardly surprising that chief justice of the supreme court T S Thakur is despairing openly in the court that the government is sitting on the appointments of judges to the high courts. In fact, he read out a list of 75 judges in the open court and wanted to know from the Attorney General Mukul Rohatgi as to why the government was not clearing these names. When Rohatgi argued that the Memorandum of Procedures (MOP) for the appointment of judges to the higher judiciary had to be cleared by the apex court and the government, the chief justice said that he is prepared to constitute a five-judge bench for this purpose.
The confrontation between the government and the judiciary could have its own reasons, but this logjam in the appointment of judges is yet another instance of the lack of systemic maturity to handle conflict situations. That such a situation continues for eight months and has reached a position where court rooms in Karnataka High Court are locked as there are no judges does not augur well for Modi’s India that seeks to improve its global ranking on the ease of doing business scale.
More so when we have a chronic situation of rising number of pending cases that stand at about 30 million now and a shortage of judges with almost 450 vacancies in 24 high courts that have more than 4 million cases pending.
Upset with the rejection of the NJAC, the government seems to be stone walling the recommendations that have now come through the collegium system. In this the MOP seems to have become the bone of contention. In effect, it is the clash of egos on the two sides and the points of agreement or otherwise is more in the nature of hair -splitting. For instance, one of the points in debate is whether the reasons should be recorded in writing when a senior-most judge of a high court is overlooked for elevation to the apex court. The government make the argues that recording the reasons would make the system more transparent, whereas the judges case is that such a course would mark a ‘permanent blot’ and block future chances as well. But comes to think of it in so far as the candidate is concerned, his cause stands lost either way.
But this does not mean that there are no substantial issues between the government and the judiciary on the MOP. Banking on the word consultation that appears in Article 124(2) that says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose,” the government has proposed that there should be a an institutional mechanism in the form of a committee comprising two retired judges of the Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government to assist the Collegium in evaluation of the suitability of prospective candidates. Along with this the government wants that there should be a permanent secretariat for maintaining a database of judges, schedules of Collegium meetings, that also maintains records and receives recommendations and complaints related to judges’ postings. The secretariat is proposed to be housed in the Law ministry. The judiciary is completely averse to the three-man committee for consultation, and is willing to look in to the secretariat proposal but wants it within the ambit of the Registrar of the Court.
Now the matter of judicial appointments will be coming up again in the apex court on November 11 when AG Rohatgi is expected to come back with the government replies on the searching questions the bench had put regarding the delay in clearing the names that have been pending for almost eight months in some cases.
But then it does not present a pretty picture when the apex court uses such language against a government that: “You are scuttling the working of the institution… “You cannot bring the entire institution (of judiciary) to a grinding halt.” It shows that the judges are a helpless lot. This feeling is reinforced when you recall that some months ago the same chief justice had shed tears in the presence of Prime Minister Narendra Modi on the status of judiciary at a public event.
The larger picture is that the government in a democracy actually gains credibility when it strengthens the judiciary, because that means its commitment to the rule of law goes beyond words and extends to deeds. Every government of the day desires that it should have a role in the appointment of the judges, but this control has usually been exercised more subtly than a brazen form of interference that the Sangh Parivar masters of this government have been exercising in other appointments. In the case of judges, the collegium would not mind to gently nudged into appointing a Sangh Pariwar nominee if everything else is okay about the candidate, but it seems unlikely that a candidate shall become a judge simply because the pariwar desires. The sooner the two sides find a way to end the logjam the better it would be for restoring the balance between the executive and judiciary and ending the current eyeball to eyeball confrontation.