Public spat

The past week has witnessed an intense public showdown between the judiciary and the executive. Both the Supreme Court and the current NDA government continue to be at loggerheads over appointments over appointments to the higher judiciary. Speaking at a function on Saturday, Chief Justice of India TS Thakur reiterated his complaint about the acute shortage of judges in high courts, which the government was quick to dismiss. “500 judges’ posts are vacant in the high courts. They should be working today, but they are not. At present, there are several vacant courtrooms in India but no judges available. A large number of proposals are still pending and hope the government will intervene to end this crisis,” Chief Justice Thakur said. Addressing the function soon after the CJI, Union Law Minister Ravi Shankar Prasad cited figures that contested the former’s claims. “We respectfully disagree with him (CJI). This year we have made 120 appointments. The second highest of 121 is of 2013. Since 1990 there have been only 80 appointments. 5,000 vacancies are there in the lower judiciary in which the Government of India has no role to play. That is something only for the judiciary to take care,” he said. But the minister wasn’t finished there. “As far as infrastructure is concerned, that is a continuous process. Where the larger issue of appointment is concerned, there is a Supreme Court decision of making the Memorandum of Procedure (MoP) more transparent, objective, reasonable, fair and the government stand is pending for the last more than three months, and we are yet to hear from the Supreme Court,” he added. This was quite a public spat. 

In September, Justice J Chelameswar, a senior judge on the Supreme Court, wrote a letter to Chief Justice Thakur, stating that he will not attend future meetings of the collegium unless there is a “modicum of transparency” in its functioning. More than the lack of judges, it is the inordinate delay in reforming the collegium system that will harm the institution’s image. There is a clear link between the delay in filling up judicial vacancies and an agreement on a new MoP. Any appointments made through the existing collegium system at a time when a new procedure for doing so is under active consideration will undermine the institution. Appointing judges under the current regime, considered opaque and inadequate, would be improper at best. Justice Chelameswar had highlighted this very fact when he drew the CJI's attention to the “futility” in taking part in an exercise which was “non-transparent”.

Among the key recommendations made in the new MoP, the government proposed a screening committee for all judges-elect comprising eminent persons and retired judges to ensure criteria-based selections. The government argues that such a process would ensure transparency. For promotion to the chief justice of a high court, the new MoP has laid down a mechanism to evaluate judgments delivered by the appointed judge in the last five years and the steps he/she took to improve judicial administration. Reports indicate that the higher judiciary has some reservations about the screening process. One area of real concern is a clause that empowers the executive to reject a collegium's proposal for appointment of a constitutional court judge on the basis of national security or public interest. The Centre is firm on retaining this clause, despite the judiciary’s contentions. “As far as a national security veto is concerned, the judges are rightly concerned about national security (or national interest) becoming a fig leaf for state unaccountability, a blunt instrument used to end all requirement for further explanation,” said a recent column co-authored by Ajit Prakash Shah, former Chief Justice of the Delhi High Court. 

In the past week, the phrase “Laxman Rekha” has come up on numerous occasions. On Saturday, Attorney General Mukul Rohatgi asked the judiciary to exercise “self-restraint” and be mindful of its “Laxman Rekha” even as it sought to police the executive and legislature. In response, senior apex court judge Justice JS Khehar responded to the top law officer of the government, saying the judiciary was well aware of its boundaries. “Be is the 39th amendment to the Constitution (placing the office of the Prime Minister beyond the ambit of judicial scrutiny) or the latest amendment that had the element of affecting the independence of the judiciary (amendment to replace the collegium with a National Judicial Appointments Commission), the Supreme Court has struck them down. It has upheld the constitutional ethos and its principles… that, if I may respectfully tell the Attorney General, is our Laxman Rekha,” Justice Khehar said rather pointedly. These editorials have often argued against judicial overreach. Nonetheless, on the question of judicial appointments, we enter a tricky terrain. We have seen how giving the government sole power to appoint judges can lead to a compromised judiciary, which works only at the former's behest. In invalidating the NJAC Act last year, the apex court expressly stated that judicial primacy in appointments is essential to judicial independence. Through the MoP, the judiciary has agreed to open itself up to suggestions for reforming the notorious collegium system. Both sides need to be a lot more mature in their public assertions and find a compromise that would ensure judicial independence and a modicum of transparency in the appointments process.