The appointments question

Confrontation between judiciary and executive must end

Even before the events of the past few days, it had become clear that the matter of judicial appointments was something of a flashpoint between the Supreme Court and the central government. But, in recent days, the disagreements have gone public in a manner that is hardly likely to strengthen India's democracy. Last Friday, a Supreme Court bench headed by the Chief Justice of India T S Thakur had unusually harsh words for the government, accusing it of bringing the judicial system to "a grinding halt" because it had delayed moving forward on a series of appointments to high courts. According to reports, the Chief Justice told Attorney General Mukul Rohatgi, representing the government, that "there are 478 vacancies in HCs, which is 44.3 per cent of the total strength of judges. HCs have four million cases pending. The entire system has collapsed. By the time an appeal can be heard, the accused would have already served a life sentence."

Mr Thakur is quite right about the scale of the problem. But the question of judicial appointments goes beyond merely speeding up the judicial system, however urgent and important that task may be. The larger question - which underlay the National Judicial Appointments Commission (NJAC) Act, passed with near-unanimous support in Parliament, only to be struck down by the Supreme Court last October - is the degree to which judicial appointments should be done only by judges, and the degree to which the executive should be involved in the choice, beyond mere vetting. This delicate discussion currently takes the form of the judiciary and executive deciding on the text of a "memorandum of procedure" for appointing high court and Supreme Court judges. The Chief Justice acknowledged this ongoing process in his initial outburst, but said that it could not "hijack" appointments. The very next day, in response to the Chief Justice, Law Minister Ravi Shankar Prasad said that 250 pending appointments would be "cleared at the earliest" and added "we are not in an adversarial relationship with the judiciary".

That is not the impression conveyed, however, by the reaction of Mr Thakur to Prime Minister Narendra Modi's Independence Day speech. There can always be a whiff of over-reach when a high-ranking member of the judicial branch comments on the chosen priorities of the executive - after all, determining national priorities is the executive's call. But even so, that the Chief Justice chose to say he was disappointed that Mr Modi had not mentioned the delivery of justice in his speech, shows that this issue is not going away.

It is now incumbent on the government to bring this disagreement, which is bordering on the unseemly, to an end. If the government is not reconciled to the collegium system of appointments, then it should work to revive the NJAC Act in such a way that it will survive judicial scrutiny. But, dragging its feet on specific judicial appointments is hardly the way to find a better answer to the general question of how judges should be appointed. On its part, the apex court could also consider being more proactive by focusing on restructuring the lower judiciary to do away with the pendency of cases - after all, more than 20 million cases are pending in district courts. In short, it is not prudent for both executive and judiciary to be locked in an ugly confrontation.