The face-off between the government and judiciary over the appointment of judges appears to be worsening with both refusing to budge from their stated positions.
A panel of top three Supreme Court judges led by chief justice of India TS Thakur has overruled the Centre’s objection to 43 names cleared by the collegium for appointments to the high courts of Andhra Pradesh, Uttar Pradesh and Karnataka. The panel, which met on November 16, rejected a request from the Centre to reconsider its recommendations.
The Centre and apex court have been at loggerheads over judicial appointments since the court struck down the National Judicial Appointments Commission (NJAC) Act. The law was brought in to end more than 20-year-old practice, unique to India, of judges appointing judges under the collegium system, with the government having no say in the process. The relationship has taken a turn for the worse since August 15 when Justice Thakur publicly criticised Prime Minister Narendra Modi for not talking about judicial appointments in his Independence Day speech.
Now the government is left with very limited options. Under the collegium system, the government can return the names recommended by the collegium only once and if the same names are reiterated by the collegium, the government is bound by it. The entire tussle is over who will appoint judges. But the most important point is being glossed over — who should be appointed as judges and in what manner?
Both sides have so far failed to reach a consensus over the memorandum of procedure for the appointment of judges in a transparent manner as mandated by a December 2015 constitution bench ruling.
The judiciary must realise that the elected government has a stake in the matter. If it is not allowed to have its say in a legitimate manner, it is bound to try other methods. As judiciary and government continue to indulge in this turf war, millions of litigants are waiting for justice. Most high courts are functioning at less than 60% of their strength even as the collegium’s recommendations for appointments have been pending for months. More than 450 posts of judges, out of the sanctioned strength of 1,079, are vacant while close to 3.9 million cases are pending in 24 high courts. The Supreme Court, which has a sanctioned strength of 31, has seven vacancies.
This situation is counterproductive. The endeavour should be to get more judges appointed without controversy as the backlog of cases is enormous and people are suffering. This public spat does not help anyone, least of all litigants. The judiciary and government ought to sit together and work out a solution instead of indulging in this very public battle.