Judicial appointments: Supreme Court and govt test Laxman Rekha
CJI Thakur says apex court duty to ensure executive stays within ambit; Minister Prasad disagrees on vacancies
In the latest sign that the Supreme Court and the Narendra Modi government continue to be at loggerheads over appointments to the higher judiciary, Chief Justice of India (CJI) T S Thakur Saturday repeated his complaint about the acute shortage of judges in the high courts — an assertion that the government was quick to “disagree” with.
Union Law Minister Ravi Shankar Prasad said the government had appointed a record number of judges this year. He also asked the judiciary to look at the large number of vacancies — 5,000 according to him — in the subordinate judiciary, and pointed out that “the Government of India has no role to play” in these appointments.
The tussle was visible at several events through the day where members of the judiciary and the government were present.
It began with CJI Thakur, speaking at a Constitution Day function in the Supreme Court where Prasad was also present, cautioning all organs of the government against crossing the “Laxman Rekha”, and asserting that the judiciary had been given the duty to ensure that everybody remained within its ambit.
“The Constitution tells us that what would be the works to be done by the government. It has fixed the duties and responsibilities of judiciary, executive and legislature. It has fixed their limits and Laxman Rekha… The judiciary has been given the duty to keep a watch that nobody crosses that limit. If Parliament has the power to make the laws, it should make only in the limits granted under the Constitution. If the state has the right to make laws, it should make only in the limits granted under the Constitution,” the CJI said.
“If they are making a law which is out of the limits granted under the Constitution or against the fundamental rights, the judiciary has every right to say that it was wrong,” he said, adding, “Any order which is against the Constitution, judiciary can set it aside to maintain the rule of law.”
At the All India Conference of the Central Administrative Tribunal (CAT), the CJI said there was an acute shortage of judges in the high courts and tribunals, for which the government’s intervention was required.
“500 judges’ posts are vacant in the high courts. They should be working today, but they are not. At present, there are several vacant courtrooms in India but no judges available. A large number of proposals are still pending and hope the government will intervene to end this crisis,” Chief Justice Thakur said.
The tribunals, the CJI said, faced, apart from “manpower deficit”, a lack of infrastructure, leading to a pendency of cases. The government, he said, was “not ready to give proper facilities (to tribunals)”.
“The state of affairs in the tribunals is giving me the impression that you (tribunals) are no better. You are suffering from the same kind of deficit, manpower deficit. You cannot set up a tribunal, you cannot set up a bench at so many places because there are no members… If the total strength of this tribunal is 65 and if you have 18 or 20 vacancies then it means that you are short by a large number. The working is going to be affected and that is why you have cases that are more than five years and seven years old,” he said.
“The least that you (government) must do is to ensure that these tribunals run with full strength,” the CJI said. “I am pained to send my retired colleagues there (tribunals).” The CJI also favoured amending the rules for appointment of chairpersons and members of tribunals so that judges of high courts could also be eligible for the posts.
Speaking after the CJI, Law Minister Prasad cited figures to counter the CJI.
“We respectfully disagree with him (CJI). This year we have made 120 appointments. The second highest of 121 is of 2013. Since 1990 there have been only 80 appointments. 5,000 vacancies are there in the lower judiciary in which the Government of India has no role to play. That is something only for the judiciary to take care,” he said.
Elaborating, he said, “As far as infrastructure is concerned, that is a continuous process. Where the larger issue of appointment is concerned, there is a Supreme Court decision of making the Memorandum of Procedure (MoP) more transparent, objective, reasonable, fair and the government stand is pending for the last more than three months and we are yet to hear from the Supreme Court.”
Saturday’s war of words underscored the almost adversarial relationship between the Centre and the Supreme Court, which has been steadily worsening ever since a Constitution Bench deemed the National Judicial Appointments Commission (NJAC) Act unconstitutional, and ordered the drafting of a new Memorandum of Procedure (MoP).
The government has been accused of sitting over a large number of files for appointments to various high courts, and also insisting on its right to reject — sometimes without assigning any reason — a candidate’s name on grounds of “national security”. The MoP is stuck due to differences between the two sides over some key clauses, with the government making it clear that it is not inclined to clear any more names recommended by the Supreme Court collegium till a new MoP is finalised.
On Friday, replying to a question in Parliament, Union Minister of State for Law P P Chaudhary had said the recent decision of the Centre to return to the Supreme Court collegium names of 43 candidates for appointment as judges in high courts was based on adverse intelligence reports, and the serious nature of the complaints against them.
The Supreme Court collegium has now “reiterated” its recommendation for 37 names, deferred three proposals, while three other names are still with it, he added.
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