Harming the cause of justice

EXECUTIVE-JUDICIARY SPAT : The top court inflicted a wound upon itself in asking the government to draw up a revised Memorandum of Procedure to select

Although Justice T S Thakur’s tenure as Chief Justice of India (CJI) came to an end on January 3 this year, will there be an end to the ongoing tussle between the government and judiciary over the appointment of judges in higher courts with Justice J S Khehar’s taking over as new chief justice of the Supreme Court (SC)?

The former CJI had slammed the Centre on several occasions for delaying the appointment of judges and  bringing the judiciary to a “grinding halt”. According to him, vacancies of judges in country’s 24 high courts were over 50% and the SC Collegium’s recommendation to fill them up was not  taken with all seriousness it deserved. 

Law Minister Ravi Shankar Prasad, in turn, denied the charge citing the figure of 126 appointment of  high court judges, the highest in the last 25 years,  made by his ministry last year, thereby breaking UPA record of 121 in 2013.  Not only he questioned the then CJI for not sending recommendations to fill seven vacancies of SC judges but also blamed all high court chief justices  for not filling 4,400 vacant  posts of judges in lower judiciary where the government has no role to play. 

It is no exaggeration to say that the delay in filling up vacancies in the country’s badly understaffed  judiciary at all levels has reached a flashpoint. As the government and judiciary spar over selection process of judges, cases have been piling up.  

According to official figures, country’s 24 high courts have about four million pending cases. At the same time, 500 out of 1079 sanctioned posts of judges are lying vacant. Nearly 30 million cases await disposal in trial courts where about 5,000 out of 20,502 sanctioned posts of judges  are yet to be filled. Not only this, the apex court also has only 24 judges out of its sanctioned strength of 31 including the chief justice to tackle around 60,000 cases. 

Consequently, the overburdened available judges are unable to clear the huge backlog of cases, leave alone handle new ones. Thus, the shortage of judges coupled with increased pendency of cases is adding to litigants’ woes and harming the cause of justice.

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 judgment, the so-called collegium system came into being for judges’ selection to ensure judiciary’s independence. 

The BJP government sought to give the executive more of a dominant role in the selection process when it came to power in 2014 by getting a legislation passed to establish a National Judicial Appointments Commission (NJAC) which would take over the task. But, the move was struck down by the SC as unconstitutional and void restoring thereby the collegium system which led to the deficit of trust between the Centre and the judiciary.

The SC had admitted that the collegium system was needed to be improved and then asked the government to draw up a revised Memorandum of Procedure (MoP) to be adopted for the selection of SC and HC judges. The top court inflicted the wound upon itself in asking the government to do so. 

This has been seen as an opportunity to control appointments through procedure which it couldn’t via the NJAC.  It  now seeks to arm itself with the ultimate power through a controversial clause in the new MoP draft to reject a nomination on the grounds of ‘national interest’ which is being seen by the judiciary as a ‘veto power’ of the executive to  erode the primacy of the CJI in judicial appointments.

The very objective of the ruling to protect judicial independence has been lost as hundreds of posts still remain vacant. The Centre is still going slow on appointments, even rejecting clearance to many nominations. In the latest instance, it has rejected 13 appointments to the Allahabad high court.

There is the government-judiciary stand-off over the finalisation of MoP.  The executive is deliberately delaying the judges’ appointment being miffed at the idea of judges appointing judges. 

Inadequate manpower

It hardly needs mention that inadequate manpower coupled with poor infrastructure is the main cause behind the delay and resultant backlog. The real sufferers in such a grim situation continue to be the hapless litigants and poor undertrials whose cases linger on for years due to shortage of judges, infrastructural inadequacies and dilatory judicial procedures. 

They are not merely reminded that “justice delayed is justice denied”, they cannot help wondering if the concept of justice has been compromised, jeopardised and negated, in their cases.   Any attempt at securing justice is an ordeal on its own and financially ruinous for many. As is commonly known to one and all, by the time an appeal can be heard, the accused would already have served a life sentence, to say the least.

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

The executive and the judiciary are two vital pillars of democracy and share a common goal of providing speedy justice. If so, it is not at all difficult to find a mutually acceptable solution of the logjam which is affecting both the governance and justice delivery system. 

Let 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 the executive and judiciary to be locked in any ugly confrontation. All in all, an early finalisation of the revised MoP for judicial appointments that ensures transparency is an imperative need of the hour.

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

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