Growing imbalance in separation of power hurting government, judiciary

NEW DELHI: Chief Justice of India TS Thakur’s unusual comments on Prime Minister Narendra Modi’s Independence Day speech has brought the wrangling between the government

NEW DELHI: Chief Justice of India TS Thakur’s unusual comments on Prime Minister Narendra Modi’s Independence Day speech has brought the wrangling between the government and judiciary over judicial appointments out in the open.

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Addressing an Independence Day function organised by the Supreme Court Bar Association, the CJI said, “I was hoping he (Modi) will speak about issues plaguing the justice delivery system. However, he did not. I request the government to pay attention to our judiciary, especially appointment of judges.”

Coming barely three days after the CJI threatened to pass judicial orders if the government didn’t clear the logjam over judges’ appointments soon, the comments point to the widening gap between the two sides over the prickly issue.

Justice Th a ku rh ad made ar are emotional appeal to PM Modi in April to double the number of judges to handle an “avalanche” of cases and criticised the Centre and state governments for unfairly putting the onus on the judiciary to clear the burgeoning backlog.

On the face of it, the showdown appears to be over selection of judges. But the real issue lies in the growing imbalance in separation of power. Ever since the judiciary arrogated to itself all powers to appoint judges through a judicial coup in 1993, the executive — irrespective of ideology of the party in power — has been trying to ‘restore’ the balance.

Political leaders have openly criticised the collegium as an extra-constitutional system under which judges appoint judges under complete secrecy. That’s why Parliament unanimously passed the National Judicial Appointments Commission (NJAC) Act to create a six-member panel headed by CJI with two senior most SC judges, law minister and two eminent persons as its members to appoint judges.

But the SC declared the NJAC Act unconstitutional and revived an admittedly opaque collegium system. Even after another round of hearings on making the collegium transparent, the SC left it to the government to draft Memorandum of Procedure (MoP) resulting in the current logjam. Had the SC clearly laid down guidelines to make the collegium transparent, the present stalemate could have been avoided.

Supreme Court lawyer Prashant Bhushan told HT, “The collegium system lacks transparency inasmuch as even the names of proposed appointees are not disclosed. Secondly, there are no criteria on the basis of which someone can be selected for appointment as a judge.”

He said, “The issues of MoP and transparency were argued before the constitution bench. It would have been better if it (SC) had laid down the procedure to make the collegium system transparent, rather than leaving it to the government.”

As the judiciary and the government spar over selection of judges, the cases keep on piling up. According to official figures, India’s 24 high courts have nearly four million cases pending before them while 478 out of 1,056 sanctioned posts remain vacant. Around 30 million cases await disposal in trial courts where 4,432 out of 20,502 sanctioned posts of judges were yet to be filled. The SC too has only 28 judges against the sanctioned strength of 31 judges to tackle around 60,000 cases.

PM Modi had in April said his government was ready to discuss the issues to find away out. If both sides don’ t resolve the stalemate at the earliest, they can do it only at the cost of their credibility.