Tensions between the judiciary and the government flared up once again today as both sides cautioned each other against crossing the "lakshman rekha" with Law Minister Ravi Shankar Prasad recalling that the Supreme Court had failed while the high courts had shown "great courage" during the Emergency.
Differences between the two sides first showed up when Chief Justice of India T S Thakur said at a function in the morning that there is shortage of judges in high courts and tribunals requiring government intervention, a view Prasad strongly disagreed with.
Later, at another function in the Supreme Court lawns, the CJI cautioned that no organs of government should cross the "lakshman rekha" and stressed judiciary has been given the duty to watch that all remain within their limits.
He was responding to Attorney General Mukul Rohatgi, who in an apparent reference to the Emergency and other political scenarios, said, "The delicate balance of the Constitution was disturbed in 1970s. That balance must be restored."
Hours later, Rohatgi said at another Law Day function in the presence of CJI and his likely successor Justice J S Khehar that "all including judiciary must recognise there is 'lakshman rekha' and be ready for introspection."
While the CJI did not respond to it, Justice Khehar said, "Judiciary has always kept to lakshman rekha by upholding the Constitution."
"Emergency brought out strengths and weaknesses of the Constitution," he said responding to the AG's remarks.
"Courts may quash the order of the government. Courts may set aside a legislation but the governance must remain with those who are elected to govern," he said, adding handling of the issues relating to Emergency in the ADM Jabalpur case in which the apex court held that even Fundamental Rights can be suspended was a "monumental lapse".
He allayed apprehensions on curtailment of freedom by the present dispensation saying not only he but also the Prime Minister suffered during the Emergency and "it will preserve the freedom of all organs of the State".
Justice Khehar said, "Judiciary is mandated to shield all persons, citizens and non-citizens alike, against discrimination and abuse of State power.
"Liberty, equality and dignity of citizen have flourished substantially in India due to the pro-active role of judiciary in the country," he said adding that "a progressive civil society and a pulsating media have contributed to keep the constitutional values on track.
Earlier, addressing an All India Conference of the Central
Administrative Tribunal (CAT), the CJI sought government intervention to overcome shortage of judges in high courts and tribunals.
"500 judges posts are vacant in the high courts. They should be working today, but they are not. At present, there are several vacant courtrooms in India but no judges available. A large number of proposals are still pending and hope the government will intervene to end this crisis," he said.
Disagreeing with him, Prasad said the government has made 120 appointments this year which was the second highest since 1990. The highest number of 121 appointments was made in 2013.
"We respectfully disagree with him (CJI). This year we have made 120 appointments. The second highest of 121 is of 2013. Since 1990 there have been only 80 appointments. 5,000 vacancies are there in the lower judiciary in which the government of India has no role to play. That is something only for the judiciary to take care.
"As far as infrastructure is concerned, that is a continuous process. Where the larger issue of appointment is concerned, there is a Supreme Court decision of making the Memorandum of Procedure (MoP) more transparent, objective, reasonable, fair and the government stand is pending for the last more than three months and we are yet to hear from the Supreme Court," he said.
Rohatgi, who called for maintaining 'lakshman rekha' among all organs of the state, said, "It is then only equilibrium will be restored."
"Constitution has given us the rule of law, independent judiciary, separation of power and most important part, i.E., the part three of the Constitution. When it set out the relationship between the state and the Centre, it set out their lakshman rekha.
"But equally it set out the lakshman rekha between the three organ of the democracy so that one will not over step the other. Even judiciary must realise that you also have a lakhsman rekha like others. Greater the power, greater the need of circumspection," he said.
Several eminent laywers and jurists including K Parasaran,
Soli Sorabji, Ram Jethmalani, Anil Divan and K K Venugopal were felicitated by the CJI at a function later at Manekshaw Centre here.
The function also marked initiation of the Constitution Day lecture series and the first one was delivered by former CJI M N Venkatachaliah.
In his lecture on 'Constitutional adjudication, judicial legislation and its limits', the former CJI referred to practices in various countries, including USA, and said "the judiciary should not overreact to a situation."
"Political vacuum is the hotbed of judicial activism," he said, adding that there should be a mutual co-existence and mutual respect between judiciary and the executives.
Besides release of annual report on performance the Supreme Court, high courts and even district courts for period of 2015-16, a book "Courts of India- Past to Present", which chronicles history of the Indian judiciary, was also released by the CJI at the function.