Deadlock over appointments hits legal machinery

In its sharpest-ever attack against the Narendra Modi government, Chief Justice of India (CJI) T S Thakur lashed out at the Centre on August 12 for delaying the appointment of judges and thereby trying to bring the judiciary to a grinding halt. He bluntly told Attorney General Mukul Rohatgi that as many as 75 names had been recommended by the Collegium since January 2016 for the appointment of judges to various high courts but all these appointments had not been finalised as yet.

“You can’t bring the situation to a stage where courts are shut down. Don’t force us to pass orders to remove this logjam,” an anguished CJI said, while hearing an army officer’s PIL alleging that the citizens’ fundamental right to speedy justice was being violated because of the long delay in the disposal of cases.  

Justice Thakur’s anguish is not without reason. Undoubtedly, the delay in filling up vacancies in the country’s understaffed higher judiciary has reached a flashpoint. As the government and the judiciary spar over selection of judges, cases have been piling up. According to the official figures, 24 high courts have about 4 million pending cases. At the same time, 478 of the 1,056 sanctioned posts of judges are still vacant.

Nearly 30 million cases await disposal in trial courts where 4,432 of the 20,502 sanctioned posts of judges are yet to be filled. Not only this, the Supreme Court also has only 28 judges out of its sanctioned strength of 31, including the CJI. A conservative estimate reckons that it would take 320 years to clear the backlog if full complement of judges sat non-stop from now, provided no new cases are filed.

When the CJI made a rare emotional teary-eyed appeal to the prime minister at the conference of chief ministers and chief justices in April this year to rescue the judicial system from its enormous workload and chronic shortage of judges, it was hoped that the executive would galvanise itself and expedite the process of appointing more judges, at least in the high courts. As it turns out, CJI’s appeal has not had the desired effect and now he has to perforce harden his stand to the point of issuing an order of judicial intervention to compel the government to follow it.

At the heart of the matter seems to be a tussle between the executive and the judiciary that has been in the making for some time. Following the 1993 apex court verdict, the Collegium system came into being for judges’ selection to ensure the judiciary’s independence. When it came to power in 2014, the BJP government sought to give the executive more role in the selection process by getting a legislation passed to establish a National Judicial Appointments Commission (NJAC), which would take over the task. The move was struck down by the Supreme Court as being unconstitutional and void, thereby restoring the Collegium system.

Controlling appointments

The apex court had admitted that the Collegium system has to be improved and then asked the government to draw up a revised Memorandum of Procedure (MoP) to be adopted for the selection of Supreme Court and high court judges. The top court inflicted the wound upon itself in asking the government to do so. The government has seen this as an opportunity to control appointments through a procedure which it couldn’t via NJAC. The very object of the ruling to protect judicial independence has been lost and hundreds of posts remain vacant. The Union government is still sitting over the 170 names already recommended by the Collegium for appointment as high court judges, despite CJI’s request not to link these vacancies to MoP.

There is a government-judiciary stand-off over the finalisation of MoP. The government is deliberately delaying the judges’ appointment after being miffed at the idea of “judges appointing judges”. Inadequate manpower and poor infrastructure is leading to what the CJI called an “avalanche” of litigations. The victims in this situation are the hapless litigants and poor undertrials whose cases linger on for years. Any attempt at securing justice is an ordeal and financially ruinous for many. As CJI himself noted: “By the time an appeal can be heard, the accused would already have served a life sentence.”

Under such pressing circumstances, it should be the top priority of the government to resolve its differences with the judiciary, rather than dragging  them out into the open.

 The executive and the judiciary are the two vital pillars of democracy and share a common goal of dispensing speedy justice. The situation is still not out of control if the two branches of the state come together on an issue that requires a good deal of consultation and cooperation. In short, it is not prudent for both to be locked in an ugly confrontation.

There should be no compromise on the need for an independent judiciary in a democracy, but it is incumbent on the judiciary to open itself up to  greater transparency and also make the executive its equal partner in the process of judicial appointments. If the government cannot reconcile itself with the Collegium system, it should work to revive NJAC model in such a way that it survives judicial scrutiny. But dragging its feet on specific appointments is hardly the way to find a better answer to the specific question of how judges should be appointed.

(The writer is an advocate at the Supreme Court and the Delhi High Court)