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An unsavoury tussle over jurisprudence

The raging battle between the executive and judiciary in India over appointment of judges to higher courts belies institutional propriety

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It just cannot be allowed to boil down to a ‘your-word-against-mine’.

Not certainly when the warring factions in this battle of one-upmanship involve the august office of the Prime Minister of India on the one hand and that of the honourable Chief Justice of India (CJI) on the other. The sheer gravitas of the issue on hand, that of appointment of judges to the higher judiciary in the country, necessitates institution of a system based on consensus rather than an acrimonious debate and a fractious point-counter point. It demands a certain degree of decorum and institutional propriety that the office of the highest public servant in the country and that of the highest judicial authority entail.

And yet, the open war of words between the Union government and the CJI has all the forebodings of a full-blown constitutional crisis – something unprecedented in the history of post-Independence India.

It all started with the Narendra Modi government coming to power with a sweeping victory in the 2014 general elections. By virtue of the 99th Constitutional Amendment Act on August 14, 2014, the Modi government sought to establish the National Judicial Appointments Commission (NJAC) to decide on all matters related to appointment and transfer of judges to the higher courts in the country, thereby nullifying the earlier Collegium System of appointment , under which, a panel comprising senior judges of the country used to be the deciding authority on appointment of senior judges to the high courts and Supreme Court. The Collegium even had the right to overrule any objection from the government over such appointments.

Taking strong exception to what it considered as an attempt on the part of the political establishment in the country to impinge upon the authority of the judiciary, the Constitutional Bench of the Supreme Court on October 16, 2015, struck down the NJAC as unconstitutional. This set forth a slanging match of sorts between the executive and the judiciary, with either side coming up with a fresh salvo every now and then. The latest addition to such exchange of fire having come from the CJI, T.S. Thakur, who publicly expressed his displeasure over the fact that Prime Minister Modi did not even allude to such a hot-button issue during his Independence Day speech from the Red Fort ramparts this August 15.

The government, meanwhile, has shown definitive signs of hanging fire by agreeing to incorporate some changes to the provisions under NJAC, as suggested by the Supreme Court. For instance, the Union Government has agreed to do away with the ceiling of appointing a maximum of three judges from amongst the senior lawyers and advocates of high courts and Supreme Court. Moreover, conceding to the demand of the Supreme Court, the government has also announced that experience will be the sole criteria in selection of judges to higher courts, back-tracking from its earlier stand, whereby it had proposed that both experience and capability would be factored in.

But the sore points still persist. CJI Thakur has repeatedly expressed his concern and frustration over what he has alleged as a deliberate attempt by the government to stymie the judiciary by going slow with filling up of judicial posts lying vacant all across the country – a charge vehemently denied by the Union Government.

The raging debate now centres on a very crucial point – on which, both the Modi government and the Supreme Court are ready to fight a pitched battle. Notwithstanding its acceptance to bring in certain modifications to the NJAC charter, as demanded by the Supreme Court, the government is still insistent that even if the Collegium recommends the name of a certain judge, the executive wing shall reserve the right to accept or reject such recommendation as it deems fit. The Supreme Court feels that by incorporating such a provision, the government is in effect trying to have the final say in matters of appointment of judges.

While there is no denying that the Collegium System did have some issues with transparency – given the fact that effectively, the senior judges themselves used to decide on who their colleagues would be – for the Modi government, however, the entire debate has raised certain uneasy questions and it couldn’t probably have come at a worse time with the government having suffered two back-to-back reversals at the hands of the judiciary in recent months over imposition of President’s Rule in the states of Arunachal Pradesh and Uttarakhand. Moreover, with the issue of intolerance still holding out a raw nerve, as self-proclaimed ‘cow protectors’ go on an overdrive in different parts of India, it will be difficult for the Modi government to find enough rallying points with the opposition on the floor of the parliament to try and build a consensus on eking out a bigger chunk of the pie for itself in this battle with the judiciary.

The government ought to have moved more tactfully on this issue and taken all the major parties on board, as part of a confidence-building measure, before taking up the cudgels with the Supreme Court. It should have anticipated the fact that in the absence of a consensus, just a constitutional amendment may not be enough ammunition in taking on the Supreme Court on an issue of jurisprudence, in which, constitutional propriety itself could be called into question at some point. With a stunning majority in the last general elections, Team Modi had probably thought that even an institution as revered and influential as the judiciary could be brought under the yoke of political conformism. Clearly, it has bitten off more than it can chew. Sensing that the government is already on a sticky wicket, the major political parties that are opposed to the ruling Bharatiya Janata Party, including the Congress, are unlikely to be part of any consensus drive any time soon to help resolve this rather unsavoury controversy.

Meanwhile, what is at stake is the sanctity of institutions such as the judiciary and the executive and the longer this slanging match drags on, the more are the chances of good governance and jurisprudence taking a back seat and a ballooning constitutional crisis.

You can follow Sanjib Kumar Das on Twitter at www.twitter.com/@moumiayush.

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