Judiciary versus Central Government
A sample of recent statements indicates the differences between the judiciary and the Central Government.
Statement of Chief Justice of India (CJI) Thakur: “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.”
Response of Law Minister, Prasad, “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.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.”
The problem of pendency of cases in India is acute. There is a need to not only fill up the existing vacancies but appoint more judges to improve the situation. The judiciary and central government are locked in a battle of mutual mistrust displayed by accusations and counter accusations. Both the organs are responsible of inaction and thus public suffering. Let us analyze the problem and seek remedies to it.
Relevant Past Background
- Mrs Gandhi was an authoritarian PM who interfered with the independence of the judiciary in the 70s and 80s.
- The ‘Collegium System’ came into existence in 1993 in response to the undermining of judicial independence. The Supreme Court arrogated the constitutional provisions for appointment to itself. This was through the creation of the ‘Collegium System’, which consisted of the Chief Justice in conference with seniors of the Supreme Court to appoint future judges. The Supreme Court became the sole and final arbitrator of not only law but also judicial appointments to the constitutional courts. The ‘Collegium System’ is flawed and the fact has been admitted by the judiciary.
- The primary reason why this system has continued is the low stature and credibility of central governments vis-à-vis the judiciary, thus creating conditions conducive to “Judicial Activism” and “Judicial Over-reach”, which have generally been appreciated by the masses. Major examples of these being:
- Examples of Judicial Activism:
- Institutionalization of PIL,
- banning smoking in public places based on PIL,
- the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren,
- and the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi.
- Example of Judicial Over-reach: Order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government schools.
- Examples of Judicial Activism:
Recent Differences between Central Government and Judiciary
In the recent cases of Central Government versus the judiciary, the judiciary has had the upper hand, leading to the embarrassment of the BJP government:
- Striking down of the NJAC, which was arguably an act of “Judicial Over-reach” and not constitutional.
- Supreme Court went against the BJP government’s dismissal of Uttrakhand and Arunachal Pradesh governments.
Present Problem of Appointment of Judges
In simple words the judiciary would like continuation of the status-quo, that is continuation of the “Collegium System” as it perpetuates its power, while the BJP government would like to enhance its power in judicial appointments. The judiciary and the BJP government have not been able to reach a consensus on the Memorandum of Procedure (MoP) which will govern the appointment of judges in future.
Disagreements on MoP
Power to Reject Candidates
- Government proposes to retain the power to reject candidates recommended by the collegium on grounds of national security/public interest.
- The judiciary is opposed to this, saying it amounts to interference in the functioning of the judiciary.
- My view: The judiciary’s view should be accepted as the Central Government does not have any better judgment on the subject.
Writing down Reasons
- For transparency and to avoid favouritism, the government wants that in case a chief justice of high court or a senior judge is being overlooked for elevation to the Supreme Court, the reasons for the same should be recorded in writing. The government says that of the five judges of the Collegium for appointing Supreme Court judges, the views of each one must be made known to the government.
- The judiciary says recordings of reasons for overlooking a chief justice or a senior judge will be counter-productive as the reasons specified may mar his/her prospects of being elevated to the Supreme Court at a future point of time. Also, it may also affect his/her duties as judge or chief justice and may become a permanent blot on his/her career.
- My view: The judiciary’s view is logical and should be accepted.
- The core of the problem is the binding nature of the Collegium’s recommendations. As per the existing system, the Collegium’s recommendations can be sent back but if the Collegium reiterates the same, it will be binding on the President to approve them.
- The government wants: “Participatory consultative process at the highest level”.
- My view: The Central Government’s view is in accordance with the principle of democracy and should be accepted.
- The government proposes to set up a committee to assist the Collegium in evaluation of the candidates. It wants two retired judges of the Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government. The government counters that “wider consultation is necessary to select best candidates”.
- The judiciary is against this recommendation.
- My view: The Central Government’s recommendation should be accepted.
Resolution of Vacancies Problem
The government wants early finalization of the MoP while the judiciary wants that the past policy should form the basis of filling up the vacancies in the absence of non-finalization of the MoP. The Central Government’s view is considered appropriate.
Recommendations in National Interest
The judiciary as well as the BJP government must realize that national interests are more important than their vested interests and work in a spirit of cooperation. Major recommendations are:
- The judiciary must not delay finalization of the MoP in accordance with the views given above.
- Once the MoP is finalized appointment of judges must be made at the earliest to lower courts as well as the high courts and the Supreme Court.
- A minimum tenure of two years should be provided to the Chief Justice of India and the chief justices of high courts.
- The judicial infrastructure and the number of judges should be increased at the earliest to cater for India’s needs, not only for now but for the coming 20 years.
- Ad hoc or additional judges must be appointed to resolve the problem of pending cases.