Vol. XL No. 34 August 21, 2016

Don't Interfere with Judiciary

THE chief justice of India, T S Thakur, has recently warned that the Supreme Court may have to make a judicial intervention to get the names of High Court judges recommended by the collegium and pending with the government approved.  For months now, there has been a stalemate between the government and the higher judiciary over filling up the vacancies in the High Court.  The Supreme Court collegium had recommended 74 names for appointment as High Court judges.  These have not been cleared by the government for appointment yet.  The standoff between the Modi government and the judiciary comes in the background of the Supreme Court striking down the National Judicial Appointments Commission Act passed by the parliament as unconstitutional in October 2014.  Having restored the collegium system for appointment of judges, the Supreme Court had also asked the government to prepare a Memorandum of Procedure (MoP) to spell out the actual procedure of appointing judges recommended by the collegium.  It is on the draft MoP that the Modi government has raised objections.  The key demand which the government wants to incorporate in the MoP is the power to reject any name recommended by the collegium for appointment to the High Court or the Supreme Court on grounds of national security. In May this year, the collegium had rejected this bid for veto power for the executive pointing out that it amounts to interference in the judiciary.  Since then, the government has been sitting on the list of 74 names sent by the collegium for appointment as High Court judges.  The chief justice of the Supreme Court has repeatedly pointed out the great burden on the judicial system because of the shortage of judges.  At present, of the sanctioned strength of 1079 High Court judges, 478 posts, ie, 44.3 percent, are lying vacant.  

Though the law minister, Ravi Shankar Prasad, had stated in parliament that the government does not intend to have any veto on judicial appointments, there is more than meets the eye in this executive-judiciary standoff.  The insistence that the government can reject an appointment to the higher judiciary on the grounds of national security sounds suspiciously like a political vetting by the government.  The Modi government has very clear ideas about what is anti-national and who poses a threat to national security as per their narrow Hindutva vision.  Earlier, during the tenure of Chief Justice Dattu, the Modi government had returned the name of Gopal Subramaniam who was recommended for a Supreme Court judgeship by the collegium.  This was a politically motivated move.

The Modi government is also unhappy with the Supreme Court judgments which nullified the imposition of President's rule in Uttarakhand and Arunachal Pradesh by the unconstitutional use of the governors concerned. The authoritarian impulse is to tame the judiciary.

As long as the collegium system is in place, the chief justice and his senior colleagues in the Supreme Court are right in resisting any attempt to dictate the choice of judges in the higher judiciary.  The attempt of the BJP-led government to intervene in the higher judiciary for its narrow partisan ends must be opposed.  The government should forthwith clear the appointment of the 74 judges to the High Court as recommended by the collegium.  

(August 17, 2016)