The crux of the problem is that all governments would like a more pliant judiciary, supportive of its actions and agenda
Is a fresh attempt being made to curb judicial autonomy, or does the judicial process actually need reform? Vice-President (VP) Jagdeep Dhankhar in his maiden speech in Parliament on November 8 chose to speak on this subject, and expressed outrage at the overruling of the National Judicial Appointment Commission (NJAC) Act by the Supreme Court. This was the second time he had brought up this issue on a public platform since becoming Vice-President, once when the Chief Justice of India Y.V. Chandrachud was sitting with him on the stage.
Much more, therefore, needs to be read in this focused critique, especially since the VP emphasised that in no other democracy can a law which has the unanimous backing of Parliament be overruled by the judiciary.
In 2014, the government brought in the NJAC Act through the 99th Constitutional Amendment. The Act, which received unanimous support in Parliament (with the sole exception of Ram Jethmalani in the Rajya Sabha), sought to replace the current collegium system for appointment of judges by another selection panel consisting of the Chief Justice of India (CJI), two senior-most judges of the SC, the Union law minister, and two eminent persons from civil society selected by the CJI, the Leader of the Opposition, and the Union Law Minister. However, in 2015, the SC struck down the Act, stating that the judiciary could not be caught in a “web of indebtedness” to the government.
The collegium for transfers and appointments of the higher judiciary consists of the Chief Justice of India and four most senior judges of the Supreme Court (SC). Union law minister, Kiren Rijiju, publicly said recently that the collegium system is “opaque” and “not accountable”. “Across the globe judges do not appoint judges,” he argued, “but in India they do so.” According to Rijiju, such a procedure is “alien” to the Constitution. Obviously, he is not only voicing his personal views, but has been authorised to do so at the highest levels in the government and in his party.
The judiciary has been quick to rebut these charges. Former Chief Justice N.V. Ramana says that people have a “wrong impression” about the collegium. He maintains that “the appointment is done through a lengthy consultative process, and many stakeholders are consulted. I don’t think the process can be more democratic than this”. A sitting judge of the SC reacted even more strongly to the law minister. “When someone in a high position says that… it should not have happened.”
In a follow-up hearing on the case, the SC was more blunt, stating that it is not going to tolerate derogatory comments by public figures on the collegium system which is the law of the land. Presumably, this meant not only the law minister but also the VP.
The crux of the problem is that all governments — cutting across party lines — would like a more pliant judiciary, supportive of its actions and agenda. After all, in 80 per cent of cases before the courts the government is a party. This explains why governments want a say in the appointment of judges. In the past, this was done blatantly, as when in 1973 Indira Gandhi appointed Justice A.N. Ray as chief justice, superseding three less compliant judges. The introduction of the collegium system in 1993 put an end to this travesty. Henceforth, the government had to accept the recommendation of the collegium for appointments and transfers of judges. The government could send any or all nominations for reconsideration, but if the collegium reiterated them, it had no option but to implement the advice.
But the government had another card up its sleeve. While it could not overrule the SC’s recommendations, it could take its own time in accepting them, or cherry pick names from the list. As of November, 2022, 68 recommendations of the collegium are pending before the government for appointment to HCs, including 11 that were reiterated by it, and thus binding upon the government to accept.
This has the making of a constitutional crisis. SC judge Sanjay K. Kaul warned that the government is “crossing the Rubicon”, and threatened to make a judicial intervention in the matter. Dozens of names, he said, are pending for the last one-and-a-half years; one lawyer, whose name was recommended, has died; a second, has withdrawn his consent.
While this ugly confrontation goes on, the ordinary citizen suffers. A total of 4.7 crore cases are pending in India, 87.4 per cent in subordinate courts, 12.4 per cent in HCs, and 60,000 in the SC. Out of 1,108 sanctioned posts of HC judges, 380 are vacant. In Patna HC, the vacancies are as high as 49 per cent — there are only 26 judges against 53 posts. In the Allahabad HC, the situation is as dismal, only 66 judges against the sanctioned 160. Significantly, the maximum number of pending litigations is in these two states. Vacancies in the Delhi, Kolkata, and Punjab and Haryana HCs are at 40 per cent. The position in the subordinate judiciary is even more outrageous. Against 24,631 posts of judges, 5,342 are vacant.
A solution must be found to this impasse. The government has a point: in no other country do judges appoint judges. The judiciary too is right in protecting its independence against a predatory government. The collegium system does suffer from a lack of transparency, but so does the government’s response to the collegium’s recommendations.
An independent judiciary is the last bulwark for citizens at the receiving end of an arbitrary, vindictive and undemocratic State. Its independence must be guaranteed. The Parliament has the right to pass laws, but the checks and balances so carefully worked out in the Constitution, empowers the judiciary to examine whether they militate against the basic structure of the Constitution. But both the government and the judiciary must also spare a thought for ordinary citizens, for whom a paramount concern is that justice delayed is justice denied.