Constitutional crisis arrives

The Indian judicial system has been in the news lately for recent judgements passed on a spate of high-profile cases. It has incidentally at the same time reached a constitutional crisis of sorts. In a representation to the President of India, the All India Bar Association has complained that the appointment of at least 125 judges in various high courts is being delayed due to a constitutional vacuum created by the abolition of the erstwhile collegium system, besides a deferment in the creation of the National Judicial Appointments Commission.

The stalemate between the judiciary and the executive, though, has been out in the open ever since the Centre notified the National Judicial Appointments Commission law last month. A flash point had soon arrived when Chief Justice HL Dattu wrote to Prime Minister Narendra Modi, refusing to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC). Attorney General Mukul Rohatgi had intimated the same to the five-judge constitution Bench, headed by Justice JS Khehar, which is hearing arguments pertaining to the constitutional validity of the new law on appointment of judges to higher judiciary. The three-member panel comprises the CJI, the PM and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six-member NJAC for the appointment of judges to the higher judiciary.

The Supreme Court had earlier referred to a larger bench the petitions challenging the constitutional validity of the National Judicial Appointments Commission Act. It, had, however, refused to stay the operation of the Act. There are many proximate causes for this current stand-off between the government and the judiciary. The most obvious one is the lack of mutual consensus over who should appoint Supreme Court judges. Critics of the collegium system of appointments have insisted that the judicial appointments process lacks transparency and accountability. This is a problematic contention because a democracy works smoothly only if there is a delicate balance of checks and balances. The system of checks and balances plays a vitally important role in ensuring that none of the three branches of government: executive, legislative and judicial can limit the powers of the others. This way, no one branch can try and become too powerful. Except that this conceptual clarity has not translated into reality. Critics of the collegium system say that recurring judicial activism has disturbed the delicate balance of powers enshrined in the Constitution of India. It’s not as if our Supreme Court justices have not noticed these lacunae.

However, a standoff between the two sides cannot continue for long. According to eminent lawyer Santosh Hegde, if judges continue to retire, with no replacements available, the overburdened litigation system will collapse. With the common man’s reliance on the rule of law dwindling every day, a firm decision on the matter must arrive soon.