No judges, no justice

Chronic shortage: CJI has hinted at stern action against the Centre for its dilly-dallying tactics

In the absence of any explanation from the Union government for not giving its assent to the 75 names recommended for appointment as high court judges, forwarded in February this year by the Chief Justice of India (CJI), one may presume that the Centre is not interested in processing the appointments quickly. Maybe, the government is unable to reconcile itself with the judgement striking down the National Judicial Appointments Commission (NJAC) Act and the 99th amendment to the Constitution last year. The government is yet to revise the Memorandum of Procedure (MoP) in consultation with the CJI and the Collegium. Media reports stated that the government wants to retain power to veto a recommendation on the grounds of national security.

It may be recalled that after striking down the NJAC Act and the 99th Constitution Amendment on October 16, 2015, as they affected independence of the judiciary, the court reluctantly revived the Collegium system knowing that all was not well with it. On December 16, 2015, after considering the suggestions made by the Bar Council, the apex court allowed the government to revise MoP in consultation with CJI and the Collegium for ensuring transparency and accountability in the selection of candidates. Pending revision of MOP, the government rightly decided to make appointments following the existing procedure.

During the pendency of the litigation, appointments could not be made. Work in several high courts suffered. Any head of the judiciary would be keen to fill up the accumulated vacancies of over 400 soon and would be deeply concerned about the delay in issuing warrants of appointment. As gentle reminders had no effect, public reminders became necessary. Rule of law is a basic feature of the Constitution, and without an effective and independent judiciary, there can be no rule of law. The Constitution mandates the government to act in aid of the judiciary. The power to make appointments is coupled with the duty to make appointments quickly. Stalling appointments by inaction is against public interest.

This is not the first time when the Central government was upset by an adverse judicial verdict. The reaction is different on each occasion. When the Bihar Land Reforms Act, 1950, was struck down by the Patna High Court, the then prime minister Jawaharlal Nehru was shocked. The Parliament immediately amended the Constitution to protect the validity of the Act and a few other Acts and got over the decision.
After the Supreme Court declared in 1973 that Parliament cannot amend the Constitution, so as to abridge its Basic Structure, Indira Gandhi’s government retaliated by superseding three seniormost judges and appointing the fourth one as CJI. As a result of the judgement of a nine-judge bench in the Supreme Court Advocate-on-Record case, the government lost its overriding power of appointment in 1993.

The Collegium has come to stay. Successive governments have been filling up public offices like governors and chairpersons of public sector undertakings and autonomous institutions with their supporters instead of eminent persons. Selection of judges is now done by the Collegium. Even so, the present government prevented the appointment of Gopal Subramanium, a deserving senior advocate, recommended by then CJI R M Lodha, as a judge of the Supreme Court.

Delaying judicial appointments is not new. In 1987, the Law Commission, in its 121st report, quoted former CJI Y V Chandrachud: “The government has a great power of filibustering...I say this man must be appointed chief justice. The government has got the power of appointing an acting chief justice. The government says, ‘we are not doing anything against you. But you see, he deserves to be appointed. Let us consider it.’ Now you see, if that person is kept as acting chief justice for say, six months, eight months, one year, two years – acting chief justices have been kept in office for three years – I find that the administration of the high court is suffering grievously. Then what do I do? I have to give in not because I knuckle under the government’s pressure but in the interest of the institution...Supposing there is no agreement between me and the government on certain appointments to the Supreme Court or the high court, no appointments are made. As I told...the government has got every weapon in its hand. It may not differ with you, but it may not agree with you. So the vacancies are kept unfilled.”

Anticipated vacancy

In 1993, while declaring the law regarding selection of candidates for appointment as judges of superior courts, the Supreme Court held that the process of appointments must be completed at least one month prior to the date of an anticipated vacancy. After initiation of the proposal by the CJI, a period of six weeks was considered sufficient for other constitutional functionaries to exchange their views and another four weeks for resolving differences, if any. Considering the urgency to make appointments, the present delay of about six months is unreasonable. The delay in finalising the revised MoP has also become a matter of serious concern to everyone – the Bench, the Bar, litigants and the public – as the judiciary is the only wing of the state accessible to citizens and commands public confidence.

For the smooth working of the Constitution, coordinated action is required by the executive, the legislature and the judiciary. In the words of Gajendragadkar C J, all the three wings of the state “must function not in antinomy, nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of three constituents of the democratic state alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country”.

The government verifies the antecedents of the recommendees and communicates adverse material, if any, to the CJI. This will take only a few days. When the government fails to discharge its constitutional duty, the proper cause for CJI is to call the attention of the government. Public statements of CJI only show his anguish at the inscrutable silence of the government. The law minister has since assured the Supreme Court Bar Association that all pending proposals would be cleared quickly.

If the deadlock persists, intervention of the President could help in avoiding the confrontation between the government and the Collegium. Otherwise, if a PIL is filed questioning the delay, the Supreme Court might be constrained to exercise its judicial power to compel the government to discharge its duty within a stipulated time. Such a PIL, of course, is avoidable.

(The writer is a senior advocate of the Supreme Court)