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EditorialJudiciary must do its part of job

Judiciary must do its part of job


Judiciary must do its part of job

What seems to be a confronting course between the Centre and the SC, over the issue of appointment of judges, is not at all healthy for the workable and trustable relationship between the Judiciary and an elected Government.  A three-judge bench headed by Chief Justice Tirath Singh Thakur had last week slammed the Centre for sitting over the Collegium's recommendations for appointment of judges and had indicated that the government could not link the appointments to the drafting of a fresh Memorandum of Procedure (MoP). The central government holds the view that the top judiciary must accept its own five-judge bench's judgment ordering re-drafting of the procedure for judges' appointment just as the Centre had bowed to the SC's decision to strike down the Judicial Appointments Commission (NJAC). The argument is perfectly in order and needed to be emphasized as the Apex Court's decision is to be complied by both the Judiciary as well as the Executives.

One wonders whether the Chief Justice's observation that if required the court would constitute another five-judge bench to clarify that appointments can continue under the old MoP reflects an attitude that could be construed as a way of circumventing or blocking the recommendation of the earlier five-judge bench on the issue. If that be so, it is deeply regrettable.

Law Minister Ravi Shankar Prasad is also well within his bounds in suggesting that there must be a time frame within which the MoP must be redrafted which is pending with the Apex Court. Why should there not be, in the interests of speedy resolution of the tangle over appointment of judges? Whatever flaws there are in the procedure must be ironed out speedily and effectively. The cold reality is that the Supreme Court's collegium system which was upheld by the Supreme Court bench reflects an opaque selection process and that needs transparency.

The Constitution provides under Articles 124 and 217 that judges to the Supreme Court and High Courts will be appointed by the government (i.e., the President) in consultation with the CJI. But the collegium system ensures that judges are appointed by the judges themselves and the government just has to nod its head. While the earlier UPA government saw no problem in toeing the line, the present Central government is not comfortable with this.

Using strong words, the Chief Justice had accused the Centre of attempting to “decimate” and “lock out” the judiciary by not making appointments to high courts. Such scathing comments detract from the necessity of the judiciary and the executive having a fine workable relationship for smooth governance.

It is on records, that both Chief Justice TS Thakur and his predecessor Chief Justice H.L. Dattu relished an activist role for the judiciary — tying the hands of the elected government in the name of social justice, anti-corruption or any other populist slogan. The Supreme Court's job is to interpret the law and also ensure that the fundamental rights of citizens are not violated. It can strike down a law that it believes is not in keeping with the basic structure of the Constitution, but it has no right to be dictating what laws the government should make, and how they should be implemented. It is a moot point whether such activism will continue even after Justice Thakur retires next January or whether the new incumbent would be differently inclined.


The Northlines is an independent source on the Web for news, facts and figures relating to Jammu, Kashmir and Ladakh and its neighbourhood.

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