The recent statement of Chief Justice T S Thakur in context of appointment of Judges to High Court and Supreme Court has opened a Pandora's Box that surfaced the long simmering confrontation between the Executives and Judiciary in India. If there were any doubts over the escalating battle, the divergence has been further reinforced by a three-judge bench headed by Chief Justice T S Thakur which has pulled up the Centre for sitting on its recommendations for appointments and transfers of judges to high courts across the country for months and asked whether the union government was trying to bring the entire judicial system to a grinding halt.
In past, incidents of confrontations between these two most important pillars of democracy, by and large, remained confined to perceptions and interpretations of various constitutional and legislative statutes and provisions special at the time of political crisis or instability, may it be in some states or at the Centre. Had there been a more accommodative spirit between the executive and the judiciary, these issues could have been discussed at the table rather than being dragged out into the open. Thus it is not a new phenomenon.
The tone and tenor of the court's observation is an extension of a confrontation that was for all to see at the annual conference of Chief Ministers and Chief Justices last April, presided over by the Prime Minister, when the latter and the CJI had taken unusually sharp positions on the issue.
The present trust deficit between the judiciary and the government dates back to a Supreme Court verdict of October 2015 in which the National Judicial Appointments Commission Act, spearheaded by the Modi government, was struck down and it was ruled that the earlier system of judges being appointed by a judicial collegium would continue.
While CJI's concern over the huge backlog of cases in the apex court and in high courts as also the fact that there are 434 vacancies of judges in high courts have duly justified. But is a confrontation with the government the right way out? Should there not be a stop to this surcharged atmosphere in which the two vital pillars of democracy are functioning? Can't a via media be found to defuse the situation and restore the spirit of cooperation between them? There cannot be any quarrel between the executive and the judiciary on the principle of dispensing speedy justice.
It can hardly be denied that weak governance in the pre-Modi years had facilitated the encroachment by the judiciary on the executive's domain. This time around, there is a strong government at the Centre. But the Modi government deserves to be checked from exercising undue authority for which the CJI is acting as a safety valve. The excesses can be ironed out if there is an open mind on both sides which is indeed the need of the hour. The current confrontation is only harming the country's interests.
It cannot be denied that the system of checks and balances envisaged in the Constitution was sound. In recent times, corruption in the judiciary has gone up manifold and the accountability of judges needs to be sharpened. It would be unwise to allow the executive to assume over-riding powers to appoint and remove judges. But at the same time, the practice of Judges appointing Judges has not been only flawless but in some cases it was disappointing too.
When the goals are common why can't there be a spirit of accommodation in finding a solution to the logjam which is affecting both governance and justice? The excesses on either side can be ironed out if there is an open mind on both sides which is indeed the need of the hour. The current confrontation is only harming the country's interests.
This time around, there is a strong government at the Centre. But the Modi government deserves to be checked from exercising undue authority for which the CJI is acting as a safety valve.
