AA Edit | Govt must not bait judges, move to evolve system first

If the statements of Union law minister Kiren Rijiju in Parliament on the Supreme Court hearing bail petitions and on the pendency of cases in the country, reflect the government’s approach and attitude to the judiciary, then it is extremely unfortunate.

The minister, while moving the New Delhi International Arbitration Centre (Amendment) Bill, told the Rajya Sabha on Wednesday that if the Supreme Court starts hearing bail applications and all “frivolous public interest litigations”, it will definitely place a lot of extra burden on it, because “by and large” it is “treated as a constitutional court”. On the delays in the appointments to the high courts and the Supreme Court, the minister told the Lok Sabha on Thursday that the issue of vacancies and appointments in the higher judiciary would continue to linger till the time a new system is created for it.

It cannot be that the Union law minister is unaware of the existence of Article 21 in the Constitution which mandates that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The entire edifice of the Constitution is built as a guarantee of the citizen against the State, whether it is benign or not. Article 21 forms the cornerstone of the structure, without which the entire existence of it will become futile. If the State can incarcerate people at will, misusing and abusing the law, and if the judiciary is blissfully looking the other way, then such a country should stop calling itself a democracy, and a constitutional democracy at that.

The law minister of India must realise that the Supreme Court and the high courts will cease to be constitutional courts not when they hear bail petitions but when they stop doing so. They are doing their job, period. The government may have its own idea about how courts should approach bail pleas presented against its agencies but the law minister articulating them in public is a serious breach of propriety and the principle of separation of powers. 

The minister’s statement on pendency of cases makes it clear that the large number of vacancies on the bench contributes to it and that the government knows the way out. His explanation that the government has currently limited powers to fill the vacancies in courts does not wash — the Supreme Court has time and again complained about how the government delays appointments and stops eminent people from joining the bench.

The government is peeved by the Supreme Court striking down the National Judicial Appointments Commission (NJAC), and rightfully so. It was a mechanism formed by amending the Constitution. As it stands now, every act of the legislature and the executive is subject to judicial review, and the NJAC law failed there.

The Supreme Court has repeatedly made it clear that the collegium system will continue until another mechanism is in place for the selection and appointment of judges. Now that both the government and the Supreme Court are on the same page, but the former must initiate the process for such a mechanism instead of allowing its minister to engage the apex court in shadowboxing.

The minister is right when he says he feels that “we are not working as per the spirit of the house and feelings of the people of the country”. Democracy has infinite ways of resolving issues other than engaging in grandstanding and dishing out innuendo.