If there is one arm of the Indian democracy that is totally a law unto itself, it is the judiciary. The executive is accountable to the legislature, the judiciary can vet executive and legislative decisions, and the elected legislature is accountable to the people, but the judiciary is accountable to no one. The judiciary selects it own judges and barring an improbable case of impeachment, there is no process by which the judiciary can be held accountable for its actions and follies.
So when the Chief Justice of India, TS Thakur, is quoted by The Times of India on 28 February of complaining about a two-month delay in clearing the process for the appointment of high court judges, he should ask himself: how much is this delay the result of the Supreme Court's own self-serving decision to strike down the National Judicial Appointments Commission (NJAC), a constitutional amendment backed nearly unanimously by parliament and by 20 state legislatures?
CJI Thakur is quoted as saying the government "can't be "sitting over the proposal (on judges' appointment) for more than two months". He also said: "...It is actually (for) the protection of the rights of the people for whom the laws were made that you (must) act. It is not for any personal glorification that the court act(s), it is for the enforcement of these laws. I don't know, but I think time has come when you do audit of the performance of the government, when we need to do audit of the government by some processes."
It is surprising that the CJI, who would surely have read the constitution in law school, should think government processes are beyond audit. There are several constitutional processes, including CAG audits, scrutiny by parliamentary committees and the opposition, testing of government decisions by the judiciary, some level of advisory interventions by the President, and final approval or disapproval by the humble citizen in elections.
So to pin the blame for delays in appointing judges on the government strains credulity, especially when the Supreme Court itself took seven months to examine the NJAC and then rejected it when it would have been more appropriate to just read it down - by prescribing checks that could insulate the judiciary from political pressures.
Consider all the ways in which the judiciary itself lacks effective scrutiny and accountability.
First, it scuttled a clear constitutional provision that said higher judiciary judges will be appointed by the government after consulting the chief justice. The Supreme Court decided it would itself select judges. This was what the NJAC was meant to correct, but the court struck it down, thus voting for itself when it was an interested party in the litigation.
Second, in sector after sector, the court has encroached into executive and law-making terrain, the latest being the decision to ban diesel SUVs from being registered in the capital. Is it the court's job to decide what cars can be sold in Delhi?
Third, the apex court has no internal mechanism to monitor or check corruption or malfeasance in the judiciary.
Fourth, the long delays in courts have less to do with government and more to do with the long vacations courts give themselves and the corruption in the lower judiciary which helps moneyed litigants prolong cases indefinitely.
Fifth, the two-month delay in appointing judges is largely because the Supreme Court itself asked the government to work out procedures for the appointment of judges. If the court can take seven months to deliver a judgment on NJAC, surely it can wait three months for government to evolve a procedure for short-listing candidates after consulting interested parties?
CJI Thakur said: "Today there are 450 vacancies in the high courts across the country. 450 is a large number which is almost 50 percent of working strength of the high courts... You also know there is a delay in filling those vacancies, which was been halted due to the bringing of National Judicial Commission."
This is an unfair statement. If the bringing in of NJAC that can be blamed for delays, surely the court's decision to scuttle it also shares the guilt for it? What stopped the Supreme Court from accepting the NJAC as valid temporarily while the case was being decided? This would have allowed judges to be appointed while the case was being heard.
CJI Thakur should introspect. The judiciary is largely unaccountable and has become a law unto itself. This can't continue indefinitely. It continues only because the polity is deeply divided right now and the judiciary is using this opportunity to enter areas that are not in its domain. It is effectively negating the people's mandate by disempowering the executive.