Face off with the government, differences in the Supreme Court collegium, vacancies in high courts and burgeoning backlog – these are the challenges that await Justice JS Khehar who took over on Wednesday as the 44th Chief Justice of India.
CJI Khehar has barely around eight-month to fix these problems. He retires on August 27.
Ever since a bench headed by Justice Khehar declared unconstitutional the National Judicial Appointments Commission (NJAC) – that was to replace the opaque collegium system of judges appointing judges — in October 2015, the government and judiciary have been at loggerheads.
As the government and judiciary indulged in a slugfest, vacancies in 24 high courts are at an all time high at 430. As on January 1,2017, HCs have 649 judges against a sanctioned strength of 1,079. Outgoing CJI TS Thakur blasted the government several times for inordinately delaying the appointments.
But the NDA government has its own arguments. It says it has appointed 130 high court judges — the maximum in a year, surpassing the UPA’s record of appointing 121 HC judges in 2013.
But the government’s latest move to return for the second time names of 13 candidates for appointment as judges in the Allahabad HC is bound to further complicate the already restrained executive-judiciary relationship. As per existing norms, the government can the names return only once.
The differences in the collegium and its failure to recommend names for seven vacant posts in the top court gave an opportunity to the government to question the manner in which the over two-decade-old judicial appointment system operates. Justice J Chelameswar— has openly questioned opacity in collegium’s functioning.
Amid showdown between the government and judiciary, there is a silver lining in Justice Khehar’s elevation to the top post. It was he who headed the constitution bench which in December 2015 admitted shortcomings in the functioning of the collegium system and suggested changes, including those in the memorandum of procedure, to make it transparent. Justice Chelameswar – who was a part of the bench – is now part of the Supreme Court collegium.
Now that Justice Khehar has taken over as the CJI, it’s expected that he would ensure implementation of his own judgment to end the stalemate.
Successive governments have been complaining about judicial overreach, including judicial takeover of the appointment process. Unlike in the past when coalition governments plagued with corruption failed to assert, the current NDA government has been vocal about judicial overreach.
The political class is not ready to digest the SC verdict on NJAC over which there was a political unanimity. A recent parliamentary standing committee report once again emphasized that judicial appointments are a shared responsibility. It called for restoring the original constitutional provision on judicial appointment that gave some say to the executive in the process.
How things unfold in the next eight months and how much improvement is made in the executive-judiciary relationship would depend upon the way CJI Khehar puts his judicial statesmanship to use.