An injudicious delay

The Chief Justice of India twice — on August 12 and again on August 15 — expressed his anguish over the obduracy of the NDA government for sitting on the recommendations made by the Supreme Court collegium for the appointment of judges to various high courts across the country.

Earlier, in April 2015, there were painful photographs in the media of a visibly perturbed Chief Justice T.S. Thakur articulating his torment over the obstinacy and foot dragging on judicial appointments by the government directly to the Prime Minister.

The fact that the CJI had to upbraid the government and caution them not to compel the Supreme Court to pass judicial orders for the appointment of judges is a telling comment on the unfortunate gridlock created by the executive in the administration of justice.

Justice T.S. Thakur’s decision to take judicial notice of the paralysis in the appointment process should not be taken lightly. In a country of 1.3 billion people, with crores of cases pending in various courts at every level, it is hardly conducive for the vacancy in the high courts to be at an average of 45 per cent. On the one hand Prime Minister Narendra Modi sanctimoniously harangues judges to take fewer vacations, but on the other hand his government has no compunctions about squatting on critical judicial appointments.

This government’s major objective has been to execute a hostile takeover of the judicial appointment process.

In one of its first actions, the NDA derailed the recommendation for the appointment of an eminent senior counsel to the Supreme Court. It is alleged that the “powers that be” were unhappy with him as he was an amicus curiae in the Gujarat fake encounter cases that took place when Mr Modi’s was chief minister and BJP president Amit Shah was home minister, Gujarat. Some of the encounters were admitted as fake by the Gujarat government on an affidavit before the Supreme Court and even interim compensation was paid to the next of kin even before the matter was judicially adjudicated by the court and appropriate directions given and orders passed.

This was followed by the constitutional amendment to introduce the National Judicial Appointments Commission. After a marathon hearing, a Constitution Bench of the Supreme Court rightly struck down the amendment and reverted to the collegium system of judicial appointments in October 2015. Since then, appointment have come to a standstill. In fact, process of appointment to the high courts has been deadlocked for almost two years now.

As per the vacancy positions released by the ministry of law and justice on August 1, out of the total sanctioned strength of 1,079 judges in all high courts, the current working strength is 601. After the chief justice of Bombay high court retired on August 10, the working strength is down to 600, i.e., marginally above 55 per cent of the sanctioned strength.

It’s no rocket science to discern that the government wants to have a say in the appointment process, presumably with a view to indulge in “court packing” and appoint judges whose ideology is compatible with the Sangh Parivar’s. This would be catastrophic to say the least. The government is the country’s largest litigant, and if judges were to toe the ideological line of the government or the ubiquitous Sangh Parivar then justice would be an elusive concept.

Since 2014, the judiciary has struck down the National Tax Tribunal Act, the NJAC Act and the 99th Constitutional Amendment, and the proclamation of President’s Rule in Uttarakhand and Arunachal Pradesh — decisions that the Narendra Modi government finds difficult to stomach. The question that comes to mind is: Could the rule of law have been upheld if the judiciary was under government control

What’s more alarming, however, is the manner in which the government is attempting to override the Supreme Court judgment on NJAC and attempting to muscle into judicial appointments through the memorandum of procedure, by seeking to relegate the seniority clause of the judges of the high court in the appointment to the Supreme Court.

The minister of law and justice gave the game away when he bull-horned that Mr Modi, being a constitutional authority, must have a say in the appointments. It underscores the malevolent mindset of the present dispensation.

The government is sitting on two recommendations for the transfer of judges of high courts, even as more than 200 recommendations are pending consideration, thereby precipitating a flash point between the judiciary and the executive. It is not conducive for the government to induce this paralysis, for after all the sufferer is the small litigant who has to wait in queue for years to get small disputes adjudicated.

The situation of under-trials is also extremely disturbing and there is an urgent need to deal with the many criminal cases that cause people to languish in jail for years on end, in clear disregard to the due process of personal liberty enshrined in the Constitution. Justice must not only be done, but seen to be done, and if the government does not change its attitude towards appointments to high courts, and continues to sit on recommendations made by the collegium, justice will elude the many.

The one thing Mr Modi has not come to terms with is that the executive is just one of the stakeholders in India’s power paradigm. As the adage goes: “Power tends to corrupt, and absolute power corrupts absolutely”. This seems to be the only reason why the Prime Minister and his minions are trying to stare the judiciary down. There is a great peril that stalks this ancient land.

The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari