In April 2015, as reported by The Hindu, a bench of Madras High Court rebuked the judicial officers who pass single line orders without giving reasons for having arrived at a decision. By doing so, it reiterated an old saying that ‘a judge should not speak but his judgments should’.
Judiciary in any democratic setup is uniquely placed in the matrix of power structure, so in India. Judges of higher courts, on numerous occasions, through their judgments have defined and redefined this matrix of power structure. But this was long before ‘My Lords’ chose to enter the debating space open to masses. Instead of reflecting their views in judgments and observations, sitting on the dais, they choose to speak publicly, allowing political undertones to permeate their words.
In a less than a week, for the second time on Monday, Chief Justice of India (CJI) TS Thakur expressed his displeasure over the logjam that has been created in judicial appointments. His displeasure was mixed with ‘disappointment’ as his expectation of Prime Minister Narendra Modi taking up this issue in his Independence Day speech was dashed.
PM Modi’s ‘silence’ on this issue miffed CJI Thakur, who on 12 August, while questioning the sense of “mistrust”, had warned the government that it would “be forced to interfere judicially” to break the deadlock.
While CJI’s concerns are not entirely ill-founded, there lingers a very important question and adjoining doubts that need to be answered.
Why the logjam?
On 12 August, almost a week after the government declined to yield to the Collegium’s objections in the memorandum of procedure (MoP) with respect to the executive having the final say in rejecting names on pretext of national security concerns, a bench led by Chief Justice of India (CJI) TS Thakur rebuked the government while hearing a PIL on shortage of judges and delay in filling up vacancies.
“We won’t tolerate a logjam in judges’ appointment…it is stifling the judicial work. We will fasten accountability now. Why is there mistrust? If this logjam continues, we will be forced to interfere judicially. We will ask for every file that was sent to you by the Collegium,” the CJI was reported to have remarked.
A pertinent question to ask here is whether this logjam created only by the executive. The fact remains that a host of constitutional experts Firstpost spoke to last month felt that the Collegium system needs to be revamped and highlighted numerous cases of nepotism in judicial appointments.
Indira Jaising, Senior Advocate, Supreme Court, speaking to Firstpost last month, said that strong ‘lobbies’ exist in judiciary that promote nepotism. “The appointment of judges to constitutional courts or indeed to any court needs to be totally transparent to be truly considered independent. A judiciary which claims independence from the executive must also be independent form vested interests and powerful cast and class lobbies. Today, I cannot say with confidence that such independence exists. The data from previous appointments show that children of judges become judges, that even within the judiciary, lobbies exist. These lobbies are invisible but they sometimes surface during periods of tension or when critical decisions are taken. So entranced is the vested interest that even at the stage of designation of Senior Counsel, the aristocracy of the legal profession gets preference.”
On 12 August, while admonishing the government for the logjam, the bench said that 75 names for appointment as judges have been recommended by the Collegium in the last eight months after the Supreme Court quashed the National Judicial Appointments Commission (NJAC) but there was no response from the government.
Again, the concern raised by the apex court was right but several recommendations made by the Allahabad Collegium were put under scanner after serious allegations of nepotism was made in recommending the names. While the interference in judicial appointments has been rejected by most of the constitutional experts, most of them agreed to the ineffectiveness of Collegium in appointing judges.
While the conflict between judiciary and the executive in the first three decades following independence cantered around the larger cause of protecting the fundamental rights and constitutional edifice of the country, developments since the 80’s have given new dimension to the tug of war between judiciary and executive. The fight that ensued between the two branches of government after First Judges Case (1982) revolved around the role of executive in judicial appointments and ‘judicial independence’ that culminated in NJAC Act to replace Collegium system for appointment of judges to higher judiciary and it being struck down by the apex court last year.
13 April, 2015 was a watershed in the constitutional history of India. The government notified the National Judicial Appointments Commission Act, 2014 and the Constitution (Ninety-ninth Amendment) Act, 2014 for bringing a change in the existing system for appointing judges in Supreme Court and high courts. While the government thought that by creating a new body, it will be able to give a silent burial to the Collegium system, the judiciary was in no mood to cede the ground to the executive. The act was challenged and struck down last year in October.
Could not those numerous hearings on the validity of NJAC be used for reaching out on consensus, on method of appointment that would have suited both and have ensured prudent and fair judicial appointment? But both the branches took to mud-sledging each other. While the executive pointed out a judge who “did not write even 100 judgments in 15 years of his tenure, in spite of the fact the collegium brought laurels to him”, the judiciary retorted in the same language by questioning the government as to why they rewarded the same person with a post in the national human rights commission.
Anupam Gupta, Senior Advocate, Punjab and Haryana High Court, who in the last three decades has highlighted the issue of nepotism time again, feels judiciary has done very little to mitigate the problem of nepotism.
Gupta, talking to Firstpost, said, “I am totally opposed to the appointment of judges’ relatives as judges. Inbreeding and nepotism has long been the bane of the Indian judiciary all over the country. The problem is truly endemic and pan-India and very little, if at all, has been done by the judiciary to mitigate it. The 2015 NJAC judgment of the Supreme Court conveniently steers clear of the problem. The judgment stretches the ‘conflict of interest’ principle (in relation to the Executive participation in judicial appointments) far beyond any known jurisprudential boundaries but turns a blind eye to the problem with in the judiciary itself. It is definitely a brave judgment but only politically and not morally.”
In March this year, speaking at Sesquicentennial celebrations of Allahabad High Court, President Pranab Mukerjee said that there are a total of 1056 sanctioned posts of judges in the country out of which only 591 judges have been appointed till now.
In March last year, department of justice in the ministry of law informed the parliament that 26,851,766 cases were pending in subordinate courts. This figure has remained unchanged since at least 2012. The number of cases pending in all the courts, including the high courts and Supreme Court, was estimated to be upwards of 3 crore.
While the pendency is big issues, it is being majorly contributed by district courts. Supreme Court’s E-Committee recently released the latest statistics on pending cases in district courts, according to which there are more than 2.18 crore cases pending in district courts across the country, out of which more than 22.5 lakh cases have failed to be decided in the last 10 years.
Can we say that this lag between the number of judges required and the number of cases pending exists and, for that matter, has been created in the last two years? Certainly not. It is a collective failure of all those who have been responsible for dispensing justice in the last 70 odd years.
While the appointment to higher judiciary is an imperative, given the fact that more than 2 crore cases are pending in districts courts, should not the apex court also think and focus on restructuring the lower judiciary to do away with pendency?
While the CJI’s ‘stern warnings’ and ‘displeasure’ would ignite the debate between the two branches, it can hardly do any good to the crore of litigants waiting for justice.