Why The Current Attack On Judiciary Is Absolutely Uncalled For

Our Constitution has a system of checks and balances among the three wings: legislature, executive and judiciary. Each wing is supreme in its own sphere. At times, they encroach upon other’s domain, leading to friction.

The judiciary under the Constitution has the power to set aside laws enacted by the legislature if they violate constitutional provisions or the basic structure of the Constitution. An executive action can be held null and void if it violates the law and the executive can also be mandated to act in accordance with the law. This may also lead to friction. A little friction is a sign of a working democracy and an independent judiciary.

Unfortunately, in the last few months the friction has increased manifold. There have been virulent attacks on the judiciary from persons holding high offices. When Union Minister of Law and Justice Kiren Rijiju made his first statement on the collegium, which was couched in a language that was not becoming of the office he holds, I thought that it was an aberration. However, the attacks on the judiciary have increased and others have joined the minister. There can be no doubt that the minister is entitled to question the functioning of the judiciary, including the higher judiciary. It is, however, expected that before taking potshots at the judiciary, especially the Supreme Court, in the media, he could have engaged in a dialogue with the Chief Justice of India (CJI). That does not appear to have happened.

No institution is above criticism, but the criticism must be constructive with a view to improve the system and not undermine it. The manner and language used in the recent past borders on slander. Many half-truths have been spoken. To me, this appears to be a well-thought out systematic attack on the judiciary. This has been done to chip away at the judiciary, curtail its independence and pack the courts with persons who suit the government. An impression is being created that the judiciary has completely failed the nation. This is wholly untrue.

The citizens of this country have great faith in the judiciary.  Such strident attacks may erode that faith. If this happens, our country would cease to be governed by the rule of law and only anarchy and tyranny will reign. I, myself, have criticised many actions and inactions of the courts, but a concerted attack to undermine the institution must be avoided.

Minister Rijiju and other dignitaries can speak in press conferences and through social media. However, the CJI and fellow judges cannot respond in a similar manner. The attack becomes one-sided.

The first attack has been on the collegium system. As the law stands today, the collegium system governs the appointment of judges. It is surprising that the law minister should make a churlish statement that the Supreme Court can make appointments itself if it feels that the government sits on its recommendations. I, too, believe that the collegium system is not perfect and requires improvement, but I see no better alternative at present. It has been said that the “collegium chooses names, and the government has no right to appoint judges”, but that is not true. The government has an important role to play. Though the names of the appointees emanate from the collegiums of the Supreme Court and high courts, the names are sent to the government for its views. On many occasions, the collegium has withdrawn its recommendations after taking into consideration the views of the government.

I agree that the collegium system must be more transparent. In the recent past, the proceedings of the collegium have been put in the public domain. There is a greater transparency now. While the collegium is criticised for not being transparent, the functioning of the government is totally opaque. No reasons are given for why certain files are dealt with an alacrity and others are not looked into for months on end. Why did the government take more than two and a half months to clear the name of Justice Dipankar Datta?  Why did the government sit over the file of Aditya Sondhi, senior advocate from Bengaluru, who has an impeccable reputation, forcing him to withdraw his name? Why has the government not approved the name of Saurabh Kirpal despite the Supreme Court reiterating his name?

Rijiju also said that the public has a right to know how the court functions and why there is a delay in deciding cases. I fully agree with him. However, the citizens also have a right to know that India has one of the lowest judge-to-population ratios. In most countries, the ratio is about 50 judges per million population. We have a sanctioned strength ratio of nearly 20 per million, but the actual ratio is about 15 per million. Appointing judges is not enough. The infrastructure of the district judiciary is abysmal, to say the least. The judiciary has no control over funds and if the government does not provide funds, infrastructure cannot be improved. We must improve and substantially increase the physical infrastructure and support staff of the courts. Only then will the appointment of more judges help. This can be done only if adequate funds are provided by the government.

Recently, it was stated that “there is a feeling among Indians that the long vacations which the court receives are not very convenient for justice seekers”.  A pointed finger has been raised at the Supreme Court judges and it has been alleged that they only work for half a year. It has also been said that nowhere else in the world do the courts enjoy so many vacations. It is totally false. In the United States, for instance, only 10 days are shown as holidays, but there are three months in which no oral hearing takes place. The U.S. Supreme Court hea­rs arguments for five–six days a month. The number of court sittings is just about 80. The number of court days in Australia is less than 100; in Singa­pore it is about 145 days; in the United Kin­gdom, about 189 days. Closer home in Bangladesh, this figure is 180 days, whereas the Indian Sup­reme Court works for 190 days. Judges also work before and after their regular court hours and on weekends, reading files, preparing and dictating judgments, besides performing administrative duties. These working days are not taken into consideration. The high courts have 220 sitting days. The district judiciary works for 245 days, which is at par with other wings of the government.

As citizens of the country, we all must strive to improve and so must the judiciary. The views of the government also need to be considered. These issues should be discussed across the table. Discussions must be based on facts and not half-truths. The systematic and vitriolic attacks on the judiciary must stop.

(This appeared in the print edition as "Absolutely Uncalled For")

(Views expressed are personal)

Deepak Gupta is former SC judge and Chief Justice of Tripura and Chhattisgarh High Courts