Narendra Modi's speech gets Chief Justice Thakur's thumbs down: Not done, My Lord!

In strict legal and logical parlance, emotions are renegade, the anti-thesis of reason. But more often than not, their discreet expression is political. It will be nearly impossible to find apt description for Chief Justice TS Thakur’s frequent bouts of emotional expressions against the government these days.

A file photo of Chief Justice of India TS Thakur. CNN-News 18

But there is nothing discreet about his latest salvo at Prime Minister Narendra Modi, immediately after his Independence Day speech from the ramparts of Red Fort. It is overtly political. In less than an hour of the speech, Chief Justice Thakur expressed his disapproval of Modi’s speech as he felt the content fell far short of his expectation.

That was as swift a condemnation as that of any political party, if not swifter. Chief Justice Thakur apparently expected Modi to dwell at length on pending appointments to the higher judiciary — an issue on which he pulled up the government in the strongest ever terms within his court room and warned of consequences. Coming from the head of the Indian judiciary, an institution which is fiercely independent and guided by strict constitutional norms — or norms derived from its own interpretation of the Constitution as in the case of appointments to the higher judiciary — the statement is quite strange, rather unprecedented for stepping out of judicial boundaries.

Predictably, Chief Justice Thakur got support from Congress' chief spokesperson Randeep Surjewala and Delhi chief minister Arvind Kejriwal.

This raises a pertinent question — does the office of the Chief Justice of India need to be seen from this political prism? As Loksatta Party leader Jayaprakash Narayan pointed out, Chief Justice of India, Supreme Court and the judiciary must learn to exercise restraint and it is not the judiciary's remit to comment on a prime ministers political speech.

Of course, nothing would do better disservice to the institution of the apex court than the use of the CJI’s utterances to settle score in politics. It would be naïve to believe that Chief Justice Thakur’s statement showing his indignation after the PM’s speech was a rant of a frustrated head of the Indian judiciary.

For, this is not the first time this has happened. For instance, in a conference of top judges of India, he broke down, wiped his tears and requested Modi, who was sharing the dais, to clear the files pertaining to the appointments to the higher judiciary.

The sight of Chief Justice of India's apex court breaking down in front of the head of executive was quite incongruent to the earlier conduct of the Supreme Court which struck down the NJAC Act unanimously passed by Parliament and ratified by state assemblies. No politician or legislator broke down, though many of them complained about the authority of Parliament being eroded.

The burden of Chief Justice Thakur's argument is that this government is sitting on appointments of judges which is leading to huge pile up of cases in courts. But facts tell a more nuanced story. Nearly 2.5 crore cases are pending in the lower judiciary which is not only understaffed but has also been working under serious resource crunch. However, Chief Justice Thakur’s concern largely pertains to the higher judiciary where nearly a crore cases are pending for resolution.

Obviously, these cases have not piled up in the past two years of the Modi government. Similarly, it has never been the case that the previous governments responded with alacrity to fill vacancies in the higher judiciary.

While it is well known that the government and the apex court are sparring over the Memorandum of Procedure (MoP) for appointments the higher judiciary, what is not well known is the tiff between the judiciary and the executive over certain appointments of judges recommended by the collegium. In an article in Firstpost, Shishir Tripathi has pointed out the growing influence of judicial dynasties in grabbing judgeship. This is a serious issue which needs to be resolved in the most transparent manner to restore the credibility of the higher judiciary. However, the manner in which the case has been progressing seems to reflect that the judiciary is least interested in making the appointment of judges transparent and open to people’s scrutiny.

In this context, Chief Justice Thakur’s emotional conduct is unlikely to cut ice with the people who are the worst victims of prevalent corruption and malevolence in the lower judiciary. Ironically, he is seen to be locking horns with the executive on an issue limited to appointment of judges in the higher judiciary.

In people’s perception, there are lingering doubts over the manner in which judges are appointed to the higher judiciary. The CJI could have turned the tables against the government if he had insisted on carrying out a radical judicial reform to make lower and higher judiciary more transparent and accountable. But that was not the burden of his song.

That's the reason why his latest run-in — the second publicly known — with the government in general and Prime Minister Narendra Modi in particular acquires the nature of political brinkmanship which is not good sign for the judiciary.