Turbulent phase

Print edition : January 20, 2017

Prime Minister Narendra Modi with the Chief Justice of India, T.S. Thakur, releasing a publication on the golden jubilee function of the Delhi High Court in New Delhi on October 31, 2016. Photo: V. Sudershan

Never before had the head of the judiciary publicly and repeatedly expressed exasperation over the government’s continued indifference to the judiciary’s concerns.

AS this issue goes to press, the Chief Justice of India T.S. Thakur would have retired, on January 3, after 13 months in office. His tenure witnessed perhaps the most bitter and open struggle for supremacy between the government and the judiciary since Independence. Never before had the head of the judiciary publicly and repeatedly expressed his exasperation over the government’s continued indifference and insensitivity to the judiciary’s concerns. As the CJI, Justice Thakur was more than accommodating of the government’s compulsions in various litigation before the court in which it was a party. But as he retired, he must have wondered what really prevented the government from reciprocating the judiciary’s respect for the separation of powers and the system of checks and balances that defines the working of the Indian Constitution.

Right from May 2014, when the Narendra Modi government came to power at the Centre with a comfortable majority, it was widely believed that the relationship between the executive and the judiciary would enter a turbulent phase. For, a government with a brute majority in Parliament is, by nature, likely to look at a counter-majoritarian institution like the Supreme Court with suspicion and seek to clip its wings.

Thus, the very first legislative measure, the National Judicial Appointments Commission (NJAC), which apparently enjoyed all-party support in Parliament and across State Assemblies, was declared unconstitutional and quashed by the Supreme Court’s Constitution Bench in October 2015 as violative of the independence of the judiciary. This meant a return to the collegium system of appointing judges to the higher judiciary, in which the judiciary—and not the executive—has primacy.

Even while asserting its independence from the executive, the Supreme Court conceded to the government its prerogative to redraw the Memorandum of Procedure (MoP) in the light of its judgment in the NJAC and the collegium reform cases to make a fresh beginning in the appointment of judges.

This, many in the legal circles believe, was a serious lapse on the part of the Constitution Bench and was inconsistent with the Supreme Court’s own understanding of how its primacy is intrinsic to its independence. This momentary lapse, in acceding to the government’s suggestion that the MoP is its prerogative and that the collegium could still have the final say in approving the new draft, amounted to handing over the judiciary’s hard-won victory on a platter to the executive. The result was a year-long impasse on judicial appointments, with both the government and the collegium not willing to reach a compromise on the new draft of the MoP.

The government used the opportunity to rewrite the MoP, to sneak in certain clauses in the draft MoP, which, if finalised, would have compromised the independence of the judiciary.

One is that the government could reject a recommendation from the CJI-led collegium for appointing a judge in the Supreme Court or a High Court if it went against national security. The other was to tinker with the criteria of seniority and subject it to “merit” and “integrity” while appointing judges.

The government proposed that the number of candidates from the Bar or from the distinguished jurists category to be elevated to the bench be restricted to three and that all judges of the Supreme Court be invited to recommend names for appointments. The government also wanted a committee comprising retired judges of the Supreme Court and eminent jurists to assist the collegium.

The collegium has apparently rejected all these proposals and has insisted that the proposed Secretariat for the collegium be brought under the jurisdiction of the Supreme Court’s registry instead of the Ministry of Law and Justice.

Even as the turf war between the government and the collegium on the judges’ appointments raged behind the scenes, Justice Thakur held the government accountable in the public domain by hearing three public interest litigation petitions on the long-pending appointments. He repeatedly grilled the Attorney General, Mukul Rohatgi, during the hearing of these cases on why the government was sitting on the collegium’s 80-plus recommendations on High Court appointments even as the number of vacancies in the High Courts across the country was alarmingly high.

When Justice Thakur insisted that the government should either approve the recommendations or return them for reconsideration by the collegium, the government blinked but returned the recommendations to appoint 43 candidates for judgeships in High Courts on the grounds of “adverse intelligence reports and serious nature of complaints” against them. The collegium, in turn, reiterated its recommendations for 37 candidates, deferred three proposals, and is still considering the remaining three names. Once reiterated, these recommendations are binding on the government.

Justice Thakur expressed his anguish during one of the hearings thus: “Once we had a situation where we had judges but no courtrooms. But now, there are courtrooms, but no judges. You may now as well close courtrooms down and lock justice out. You can have the institution called the judiciary locked.”

With Justice J.S. Khehar, the senior-most judge, being appointed the next CJI, the conflict between the government and the judiciary appears set to intensify further. Having presided over the five-judge Constitution Bench that declared the NJAC unconstitutional and restored the collegium system of appointing judges, Justice Khehar is unlikely to cede space to the government in the ongoing battle for supremacy.

Parliamentary committee

Meanwhile, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, in its 87th Report on “Inordinate Delay in Filling up the Vacancies in the Supreme Court and High Courts”, has blamed the judiciary for distorting the original mandate of the Constitution and has urged the government to take appropriate measures to restore it.

The report admits that the large number of vacancies in higher judiciary is a cause for concern and worry for all and that nearly 43 per cent of the approved strength of judges in the High Courts is vacant. The report has recommended increasing the age of retirement of High Court judges from 62 to 65 and of Supreme Court judges from 65 to 67.

The report has also proposed a fixed tenure for the Chief Justices of the High Courts and for the CJI to avoid the collegium being dysfunctional. A fixed term for chief justices may deprive the opportunity of senior-most judges to realise their ambition of becoming chief justices, and, therefore, is unlikely to find favour with the judiciary.