 "High-stake gavel trouble")
The story has all the elements of a Bollywood potboiler - suspense, family drama, tears, an emotional patriarch and intrigue. Except that it deals with an issue that is deadly serious. The appointment of judges is a matter that is hurtling towards a government-judiciary confrontation. And, no one seems to be in a position to do anything about it.
When it started, the ruling Bharatiya Janata Party had noble intentions. In its manifesto, the party said it would "accord high priority to judicial reforms, to address the issue of appointment of judges, filling the vacancies, opening new courts, setting up a mechanism for the speedy clearance of the backlog of cases at various levels in the judiciary; initiate a mission-mode project for filling vacancies in the judiciary and for doubling the number of courts and judges in the subordinate judiciary".
The government has tried to move ahead on all these. However, it has hit a brick wall on the Memorandum of Procedure (MoP) for the appointment of judges. The judiciary expects it to move on the matter - and T S Thakur, the Chief Justice of India (CJI), publicly gave vent to his disappointment when he said he'd expected the Prime Minister to flag the issue in his Independence Day speech.
Appointment of judges has always been a tricky issue. The MoP is supposed to include provisions on eligibility criteria, transparency in the appointment process, establishment of a secretariat in each high court and the top court, and a mechanism for redressal of complaints against those being considered for judgeship.
But, pending agreement on an MoP, how is the government - and the judiciary - expected to function on new appointments?
Consider the problem. Recent research revealed that in 2013, the collegium for appointment of judges in the Punjab and Haryana high court - comprising then chief justice (now Supreme Court judge) A K Sikri and judges Jasbir Singh and S K Mittal - sent eight names. These were Manisha Gandhi (daughter of former chief justice of India A S Anand), Girish Agnihotri (son of former judge M R Agnihotri), Vinod Ghai, B S Rana (former juniors of judge S K Mittal), Gurminder Singh and Raj Karan Singh Brar (former juniors of judge Jasbir Singh), Arun Palli (son of former judge P K Palli) and H S Sidhu (additional advocate-general in Punjab).
An MoP, had it been in place, might not have recommended all eight for elevation. Besides, the same challenges that confront society are also question marks before the judiciary. It has been argued that the judiciary needs to reflect social balance much more appropriately. It needs to be much more gender-sensitive and needs to have a policy for the appointment of judges that takes into account current social inequalities, without compromising on the quality of justice that is delivered.
Not thus
So, how should judges be appointed? Matters came to a head after the verdict in October 2015 of a five-judge Supreme Court bench, headed by J S Khehar. It declared as "unconstitutional and void" the National Judicial Appointments Commission Act, passed by Parliament that visualised the creation of a new body to appoint judges. The bench later directed a new MoP be finalised by the government, in consultation with the CJI.
The government sent the draft of the MoP to the CJI on March 22 this year, while the CJI returned with the views of the collegium on May 23. There is no agreement between the government and the judiciary on certain clauses.
For instance, that the government prevent the appointment of a judge by citing 'national security'. Similarly, the government says it would like to see as high court judges, in the case of those being elevated from the lower courts, their track record of clearing pending cases, for instance. And, in the case of those being appointed from outside, the type of cases they have argued.
No longer is a jury of peers sufficient to appoint judges, the government believes. No collegiums can be given untrammeled powers to appoint those who dispense justice.
On the other hand, the community of judges, especially those who are retired, feel to give the government a handle, however small, in appointing judges will sound the death knell of the justice system in India as we know it.
An August 3 letter from Union law minister Ravi Shankar Prasad to the CJI, providing clarifications on the contentious issues, reiterates the government's inflexible stand. Though the government has acceded to the collegium's view for removal of the cap on appointments to the SC from the category of lawyers and jurists (earlier proposed at three) and on seniority alone being the criteria for elevation of judges in the high courts, unlike the merit-cum-seniority method as proposed earlier, it still wants chief ministers to have a defined role in making appointments to the high courts.
The government is also adamant on vetting names of prospective appointees before the collegium makes a final call, as well as the power to reject proposals for appointments on the ground of 'national security', though it is now willing to provide reasons for doing so. The law minister recently mentioned before the Rajya Sabha that the government had no intention of keeping a veto on judicial appointments in the MoP but the August 3 communication tells a very different story.
"Our main objection is to the veto power. This will make the judiciary totally captive in the hands of the government. (The veto power provision means that if any two members objected to an appointment, the matter ends there.) This is something very sinister, and we never supported this clause" says Congress MP and SC lawyer Kapil Sibal.
This tussle has already had the CJI reduced publicly to tears. With neither the judiciary nor the political executive yielding ground, it is the judicial system which is failing. Data on vacancies in the high courts as on July 1, issued by the ministry of law and justice, shows that against the approved strength of 1,079 judges, the 24 high courts are functioning with 609. Eight have officiating chief justices.
"Today, the apex court must take the responsibility. Because you have arrogated to yourselves the power of appointment since 1993, you can't have power and not the responsibility, you can't have power and not the accountability…Having arrogated to themselves the power of appointment, having made themselves the most incestuous family in the world, by procreating themselves through progeny, they must now bear the responsibility of arrears," Congress MP and lawyer Abhishek Singhvi said, on the issue of backlog at a seminar at Nirma University in Ahmedabad in July.
All India can do is stand and admire the problem.
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