Adjourn, Adjourn

Is the Centre treating the judiciary like it does the Delhi government? More and more people are asking this as a seemingly helpless Chief Justice of India blows hot and cold about the huge shortage of judges. What if Parliament and the state assemblies keep half the seats vac­ant? If such vacancy in the legislature is read as collapse of democracy, surely a fifty per cent vacancy in high courts amounts to crippling the judiciary? This parallel, however, has left the ­Centre largely unmoved.

The distance between the Supreme Court and Shastri Bhavan that houses the ministry of law and justice is just 3 km or so. But over the past year, the ­metaphorical distance has grown and news of the rift spilled out in the open. With Chief Justice of India Tirath Singh Thakur’s term ending early next January, the government seems to be playing a waiting game before moving in to exercise greater control over the judiciary.

Mid-August, the Facebook page and Twitter handle of Union law minister Ravi Shankar Prasad let on nothing about the growing discomfort between the government and Thakur. Since Independence Day, the law minister has been nonchalantly posting photographs about painting competitions, the BJP-sponsored ‘Tiranga Yatra’ and his visit to the house of freedom fighter Batukeshwar Dutt’s daughter, besides complimenting badminton ace P.V. Sindhu for getting into the Olympics semi-final and Dipa Karmakar for her phenomenal vault. In short, on everything except anything to do with his job in the law ministry.

There was no reference to the chief justice’s lament on the prime minister not sparing a word for the judiciary in his address either. “Under British rule, it took 10 years to deliver a judgement; ­today, even 100 years may not be enough because of a shortage of judges,” the CJI had said earlier, threatening to call for every file for appointment that the ­Supreme Court collegium had forwar­ded to the government.

The collegium had cleared 78 names for appointment as judges in various high courts across the country. The government had been sitting over the files for eight months when the CJI went public with his complaint. He pointed out that in April there were over 432 vacancies in the high courts—44 per cent of the sanctioned strength—with as many as 82 in the Allahabad High Court alone. Nearly four lakh cases were pending in the total 16,513 courts across the country, including nearly 40 lakh in the high courts.

“What the Chief Justice of India is talking about are the vacancies in the sanctioned strength and I think that is a fair point,” says Bangalore-based adv­ocate Harish Narasappa. “We are not asking for new judges. For instance, in the Karnataka High Court with a sanctioned strength of 62, we have less than 30 judges at the moment. It is just pat­hetic. This is the higher judiciary, for god’s sake. And look at the number of acting CJs in various high courts at the moment. In terms of the numbers, we are looking at a breakdown.”

Even earlier, the CJI had wondered why the government should not just approve the recommendations for appointment made by the collegiums. The proposals for appointment of high court judges, after all, originated from the chief justices of the high courts and passed through the governor and the chief minister of the state before reaching the Union law ministry, bes­ides being referred to the Intelligence Bureau for vetting prior to being sent to the collegium. Any more delay in the appointment of judges, said the CJI, would shut down the courts, but the government remains unmoved.

In fact, the government has made no secret of its ‘right’ to veto judicial ­appointments and have its say in the app­ointment and transfer of jud­ges on the basis of “merit, integrity and ­performance appraisal”. Consequently, around 40 recommendations of the ­collegium for transfer of high court ­judges are also pending with the ­government. Even the recommendation to transfer the chief justice of the ­Uttarakhand High Court, K.M. Joseph, on health grounds to Andhra Pradesh has been kept on hold since May.

Union MoS for law and justice P.P. Chaudhary denies there has been any delay in judicial appointments. “Till ­December 16, 2015, there was a stay by the Supreme Court on such ­appointments,” he tells Outlook, largely ­reiterating what his senior Prasad has been telling the media. “Once the decision came in the NJAC (National Judicial Appointments Commission) case, the then law ­minister Sadanand Gowda wrote to the Chief Justice of India saying that we would proceed as per the old procedure since the MoP (Memorandum of Procedure) was still being drawn up. During the last six months, we have appointed 52 ­judges, ­including four for the Supreme Court, and confirmed or extended the tenure of 110 ad-hoc jud­ges. I don’t think so many appointments have ever been made within a six-month period in the past 65 years. We have to be careful because in case of wrong app­ointments, the public will suffer and we will be accountable. But we also want a robust, credible, ­meritorious and ­independent judiciary.”

Several lawyers Outlook spoke to felt that the Supreme Court is paying the price for allowing the government a say in finalising the MoP for appointment of judges. “The government is ­blatantly ­using the possibly unintended and yet self-inflicted wound by the judiciary in allowing greater participation through the MoP to pressurise and virtually blackmail it,” says Abhishek Manu Singhvi, a senior advocate of the Supreme Court. A former additional solicitor general of India adds a dark note, “The denial of manpower to the judiciary through obstructive delays unless the judiciary agrees to the government’s version of the MoP amounts to a direct assault on judicial independence, which in turn is a direct violation of the basic structure of the ­Indian Constitution.”

Through the MoP, the ­government wants the attorney-general at the Centre and the advocate-generals in the states to have a say in the ­appointment of ­judges. It is also learnt to be insisting on a ­process to deal with complaints against ­judges.

Yet another provision in the MoP is that any ­dissenting note submitted by members of the ­collegium on appointments be shared with the government. There are ­other contentious clauses ­regarding, for ­instance, the setting up of a permanent secretariat for the collegiums, which the apex court wants to function under the registrar general of the court while the government insists on separating it from the court and having it placed under the law ­ministry.

The judges have been deeply suspicious of these moves, believing, not without reason, that the executive was trying to find a foothold to interfere in the jud­iciary. With the government being the single largest litigant and the Constitution providing for separation of powers among the executive, the legislature and the judiciary, such apprehension may not be entirely misplaced.

At the same time, the government has exploited the glitches in the judiciary’s profile—pointing out, for instance, that appointments of judges have often been parochial—to push its case.

There is indeed a widely held belief in legal circles that only a few hundred families in the country have contributed judges to the higher judiciary. Sons and relatives of former judges being chosen to don the same judicial robes has also given the bench a slightly dynastic colour. But then, there has also been opposition to this from within the legal fraternity—in 2013, the Punjab and Haryana High Court’s collegium, for exa­mple, dropped six of the eight names proposed for elevat­ion after the bar association objec­ted on these grounds.

By Ushinor Majumdar with Ajay Sukumaran in Bangalore