The unpleasant stand-off between the judiciary and the executive has surfaced once more. It begins with the Supreme Court collegium clearing names of Chief Justices and judges of High Courts. Headed by Jagdish Singh Khehar, the collegium is moving forward with its recommendations without waiting for the final resolution of the new memorandum of procedure (MOP).
The latest face-off is unpalatable and shocking. The government believes it has the right to reject any recommendation in matters of appointment of judges on grounds of a “threat to national security” without giving any explanation. The Supreme Court and many legal luminaries advocate the necessity of complete judicial independence. They insist that the judiciary should have the last say when it comes to appointment of judges.
Some of the best legal minds are also of the opinion that judicial independence lies at the heart of the concept of modern government. This theory postulates that judges must be free to act independently of those with political and economic control. The notion has its roots in the doctrine of separation of powers. It is based on the conviction that the concentration of state power in some hands could lead to tyranny. As Montesquieu said, “There is no liberty, if the judiciary is not separated from the legislative and executive”
However it is felt by many, and not without reason, that there are many instances where the judiciary has not been ‘fair and just’ even in cases of appointment of judges. Persons with barren legal history and thin resumes have made it to the high chair of justice just because they scored more in the private minds of judges. Why just about appointment of judges, even in the appointment of senior advocates, examples of nepotism and undue favours are to be seen. While many deserving senior lawyers are not getting that ‘distinction’, many well connected ones are found flaunting their new identities with undue pride. Even many upright judges and some ex-CJIs have openly admitted the growing corruption in the judiciary and have expressed concern.
The open defiance of Justice Chelameswar in refusing to attend collegium meetings has not escaped observation. All these, as symptoms of growing disorder in the judiciary, have become not just the talk of the profession but are even part of public discourse. Maybe all these factors have weighed in with the executive in seeking to exercise more control. Hence, ever since the judiciary arrogated to itself all powers to appoint judges through a judicial coup in 1993, the executive has been trying to restore what it considers a balance. Political leaders across party lines have openly branded collegiums as an extra-constitutional system under which judges appoint judges in complete secrecy.
Though the argument of the executive is not without substance, there is much more that it has to answer for. If growing instances of corruption in the judiciary have become a matter of concern, stories of rampant corruption and periodic ‘high-handedness’ by the executive have entered the belief system of billions of Indians, who have internalised this knowledge through every day hazardous experiences while dealing with an inefficient, arrogant, corrupt and self-serving bureaucracy working under protective political masters who have vested interests in the loot. So much so that it has become a matter of personal agony for helpless citizens, and their sole hope and source of relief comes in the shape of the judiciary, the ultimate savior.
The present government under Narendra Modi offers the promise of cleansing the old system. However, such hopes would fructify only when the quality, character and flavor of the new system become a part of our everyday life. The outcome may mitigate the apprehensions of citizens. But it may not be unfair to say that more than the authority of the executive, the citizens would love to see the independence of the judiciary.
The glorious history of the Indian judiciary and its remarkable show of independence, where it has stood like a rock to protect the rights of the poor and humble from the mighty, has kept alive a life of freedom and fearlessness for billions. This is the reason the judiciary could create and sustain for so long a rare sense of respect and reverence.
This is a most critical time for us. Acts of violence are being carried out openly and those with extreme thinking are entering government and assuming decision-making positions. It is a time for Indian democracy to show its maturity. And that can only happen with a great leadership vision at the top and full independence enjoyed by our judiciary.
Questioning a few not-so-righteous acts of judges and citing a few examples of corruption and nepotism may have a logical basis, but this cannot overwhelm the bold impartiality and character of a majority of our learned judges, reflected many times and in many situations. It seems highly unjustifiable even to think that our judges in collegiums will ever choose an extremist or one with terror links to the high chair of justice. I am sure many in their legal career might have professionally represented some alleged anti-socials or terrorists but to think that such people could be a ‘threat to national security’ is wildly fanciful.
It is time to be a little more proactive and add strength to the justice system, thus strengthening the judicial infrastructure and rewarding fairness in the judicial system. Of the sanctioned strength of 1079, as many as 447 posts of judges are vacant in various high courts. Almost 50 per cent of the posts are vacant at Allahabad High Court, the country’s biggest, with sanctioned strength of 160. Calcutta High Court has the second highest vacancies with 37 of 72 posts lying vacant. The High Court of Telangana and Andhra Pradesh with sanctioned strength of 61 has 34 posts vacant while the Punjab and Haryana High Court has 39 of the 85 posts vacant.
As courts cope with these vacancies, some very disturbing happenings are taking place. The brutal killing of an innocent dairy farmer in Alwar for transporting a cow he had bought legally, the money award for Mamata Banarjee’s head for being what she is and a chaotic situation in Kashmir where security forces are being manhandled by so-called separatist groups are some of these.
All these are indications that we are reaching the tipping point of intolerance and aggression. In such cases, moderation becomes a bad word and extremism of any form the order of the day. This evolution of ‘moments of excesses’ may bring more disasters than one can even imagine, especially when you consider the after-effects in societies of an inter-connected world. What are needed most therefore are firm moderators who can provide checks and balances. And no one can perform that role better than an independent judiciary manned by upright judges.
In an ideal democracy, absolute independence of judiciary is a precondition. The reference to a “threat to national security” will put a question mark on the ability of judges in making appointments through collegiums on the one hand while on the other it will debilitate many senior advocates. Overall, it will retard the dynamic character of the judiciary. A tethered judiciary will result in India becoming the “functioning anarchy” that Professor Galbraith once described it as.
The writer is Chairman, Paras Foundation and can be reached at [email protected]