Judge this: Are country's judiciary, executive heading for clash?

  • Satya Prakash, Hindustan Times
  • Updated: Apr 28, 2015 21:29 IST

Chief Justice of India H L Dattu's refusal to join the National Judicial Appointments Commission (NJAC) has created an unprecedented constitutional crisis that can potentially lead to an ugly face-off between the judiciary and the executive.

Responding to the government's request to attend a meeting with Prime Minister Narendra Modi and Mallikarjun Kharge, the leader of the single largest opposition party in the Lok Sabha, to select two eminent persons who would be part of the six-member NJAC, Dattu wrote to the Prime Minister that he would not join the panel until the top court upheld its validity.

The developments could disturb the fine balance between various organs of the state as envisaged under the constitution.

The NJAC , headed by the CJI, comprises two senior-most Supreme Court judges, the Union law minister and two eminent persons as members. It has powers to appoint Supreme Court and High Court judges.

The two eminent persons are to be selected by a panel of the Prime Minister, the CJI and leader of opposition or leader of the largest opposition group in the Lok Sabha.

In immediate terms, the crisis is likely to hit additional judges in various high courts whose two-year term is set to end in the near future. Also, this will further delay appointment of judges in 24 High Courts which together have 251 vacancies against their sanctioned strength of 906. The Supreme Court too has three vacancies.

If the stalemate continues, it will lead to further decline in poor judge-population ratio in the higher judiciary, resulting in increased pendency.

At the end of February, a total of 61,300 cases were pending in the Supreme Court. Around 45 lakh cases are pending in 24 High Courts.

But the question is not limited to just the new system of appointing judges that has replaced the two-decade-old opaque collegium system or the career of some additional judges. What is at stake is the far greater issue of constitutional discipline and rule of law, which require all those holding high offices to honour the oath taken by them irrespective of their personal opinion - howsoever well-intentioned that may be.

No doubt, the NJAC's constitutional validity is under challenge. But once the law has been notified, it has become operational. The government is perfectly within its right to take steps to make the NJAC functional, particularly because the Supreme Court (first a three-judge bench and then a constitution bench) chose not to stay it.

For the CJI to say that he will not join the NJAC meetings despite the Supreme Court's refusal to stay the new law cannot be justified in constitutional terms.

But the crisis can be resolved without escalating it further as the constitution bench has decided to hear petitions against the NJAC on merits.

First, it can extend the term of additional judges by a judicial order, averting any immediate crisis.

Second, it can order a stay on the operation of the new law, giving a legitimate reason to the CJI not to join the NJAC.

Third, the constitution bench can revive the collegium system and ask it to function during the pendency of petitions challenging the NJAC.

But it will be highly embarrassing for the CJI if the constitution bench does not do any of the above and asks him to join the NJAC's meetings to select two eminent persons.

"Be you never so high, the law is above you," said 17th century English author Thomas Fuller. This applies to all - more so in the case of constitutional functionaries - the CJI included.

(The views expressed by the writer are personal. He tweets as @satyastp_satya.)

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