Judiciary-government spat over appointment of judges spells imminent crisis for India

The spat between the executive and the judiciary was the lead news in last Sunday's newspapers, again.

"India’s top judge lashed out at the Centre on Saturday over a large number of vacancies in the high courts and his successor warned of striking down any future law that would impede the judiciary’s independence. Union law minister Ravi Shankar shot back by reminding how the top court 'failed' the country during Emergency and attorney general Mukul Rohtagi mentioned a 'lakshman rekha' for the judiciary," the Hindustan Times reported.

According to a Times of India report, "the bitter judiciary-government spat over judicial appointments turned more vitriolic with Chief Justice of India TS Thakur and law minister Ravi Shankar Prasad going public on Saturday in their sharp disagreements on who is responsible for the delay" in filling the vacancies.

Representational image. AFP

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The moot question is: what is going to be the outcome of this unsavoury tug-of-war between the top executive and the top judiciary that threatens to rip apart the very fabric of the Indian democracy?

Consider the facts. Earlier this month, the Supreme Court Collegium had recommended 77 names for appointment as judges in various high courts out of which the government of India accepted only 34 names. The "rest 43 recommendations have been sent back to the apex court for reconsideration”, the attorney general had told a SC bench on 15 November.

But the Supreme Court refused to take cognisance of the reasons that the government gave for rejecting the names. “We have reiterated 43 names for the appointment as judges of high courts which were rejected by the government and have been sent back for reconsideration,” a SC bench comprising Chief Justice TS Thakur and Justice AR Dave said on 18 November.

The government is yet to respond to the Supreme Court stance on filling the vacancies in the high courts, though more than a week has passed. So, the sparks are flying.

The issue is serious. The Ministry of Law and Justice had released the following data on 1 July 2016,regarding existing vacancies in various high courts: the 24 high courts were functioning with just 609 judges out of the total sanctioned strength of 1,079 judges. It meant that almost 45 per cent of the positions of high court judges are vacant.

The Law Ministry report presented some glaring facts: the Allahabad High Court was making do with just 78 judges against an approved strength of 160; the Punjab and Haryana High Court has a bench strength of just 46 while the sanctioned strength is 85. The same is the story, more or less, with most other high courts in India.

The result is disastrous. According to a Ministry of Law and Justice report released on 3 March 2016, the number of pending cases in high courts as on 31 December 2014 was a staggering 31,16,492 civil cases and 10,37,465 criminal cases. The same report tells us that the number of cases pending for more than 10 years in high courts by the end of 2014 was 5,89,631 civil cases and 1,87,999 criminal cases. All these figures must have gone up significantly in the last two years since the last report was compiled.

Though the pendency of a large number of cases is due to several inter-linked factors, the absence of almost half of the sanctioned judges (it must be mentioned that even the sanctioned strength of judges in India in proportion to the population is quite low in comparison to the population-judges ratio in advanced democracies of the world) is a major contributory factor for the current crisis.

Unless the vacancies are filled up fast, the crisis is certain to implode in our face, soon.

But the question is: if the executive refuses to reconsider the recommendation of the SC with regards to the 43 names — just as the Supreme Court, earlier, declined the appeal of the executive to reconsider the same cases — there is going to be a major stalemate that will worsen the given situation.

The question is: who will have the final veto power in the appointment of judges — the executive or the judiciary?

This question has come up now— after almost seven decades of Independence — because for almost the first five decades after the Independence, the executive had the decisive say in the judicial appointments till the top judiciary appropriated this power to itself in 1993 by creating a collegium comprising solely of Supreme Court judges to decide the names of the high court judges.

The Supreme Court justified its stance in 1998 when President KR Narayanan, in exercise of his powers, sought the apex court’s opinion on a question of law regarding the collegium system.

It was surprising that the executive tamely gave in when its long-held powers were usurped by the SC and accepted almost all recommendations of the collegium without a murmur of protest. Though, both the Congress and the BJP ruled at the centre in the next ten years (1993-2004), no legislative measures were undertaken by either to checkmate the powers of the Supreme Court.

Just as the Supreme Court got used to its exclusive power over judicial appointments over two decades, the executive came up with the National Judicial Appointment Commission (NJAC) Act, 2014, to scrap the collegium system of appointment of judges and to provide for a commission that gave a say to the executive in the appointments. Not surprising that the Supreme Court in October 2015 struck down the NJAC Act and also the 99th Constitution Amendment Act, 2014, that had incorporated the NJAC provision into the Constitution.

In order to assuage the concerns of the executive and the legislature (a two-third majority in both houses of Parliament had passed the NJAC Act), the Supreme Court, in a decision in November 2015, agreed that the government would draft a revised Memorandum of Procedure (MoP) for the appointment of judges.

This revised MoP is now the bone of contention. The executive has come up with a clause in the revised MoP to retain for itself the power to reject some or all names recommended by the Supreme Court Collegium on the grounds of national security, but the Supreme Court has refused to play ball with such a provision.

In the last two decades, the executive had sent back a few cases for the reconsideration of the collegium, but if the collegium declined to reconsider, the executive was bound to accept the names. But in the revised MoP, the government has sought the final veto power for itself to either accept or reject the SC recommendations. No wonder the Supreme Court has refused to ratify the revised MoP.

It is now to be seen who blinks first — the executive or the judiciary? If both remain inflexible in their respective positions, India is headed for a constitutional crisis.