Judicial independence sacrosanct

At stake is citizens' rights

J.S. Khehar and T.S. Thakur Instead of a d o p t i n g conc i l i a tor y approach, it is regrettable that the judiciary and the executive should be on a confrontationist path on the question of appointments to the higher Judiciary. There are said to be 500 vacant posts. Justice T.S. Thakur, who retires as Chief Justice of India (CJI) on January 3, has repeatedly are making 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", adding, "Any order which is against the Constitution, the judiciary can set it aside to maintain the rule of law !" No one can dispute the Judiciary's role as custodian of the Constitution. It alone can ensure transparency, fairplay and accountability in the system and bring the guilty to book and put the persons at the helm on the right course. Differences between the two main pillars of the Republic are not a new phenomenon. They surfaced even before formal adoption of the Constitution on January 26, 1950. In

The collegium system is an in-house arrangement which is supposed to ensure independence of the judiciary. Some critics, however, see it as a non-transparent closed-door affair with no prescribed norms regarding eligibility criteria or for the selection procedure for elevation as a Judge.

complained about the acute shortage of judges in the high courts—an assertion the government does not fully agree. Union Law Minister Ravi Shankar Prasad says the government has cleared appointments of a record number of 120 judges in 2016.

The whole issue has acquired somewhat politico-judicial overtones, with Attorney General Mukul Rohatgi asking the judiciary to exercise "self-restraint" and be mindful of its lakshman rekha. To this, Justice J.S. Khehar, who takes over as Chief Justice of India on Justice Thakur's retirement, has asserted that the Judiciary is well aware of its lakshman rekha. Justice Khehar is right. The judiciary enjoys high credibility vis-à-vis the executive in people's perception.

Justice Thakur has been very candid and forthright in his observations. He states : "If they (Parliament and the State) his book The Judiciary I served, P Jagmohan Reddy refers to how and why India's first Prime Minister Jawaharlal Nehru objected to the proposed appointment of Justice H.J. Karnia as Chief Justice of the Supreme Court on the ground that he "exhibited mentality which is very far from being Judicial and is totally unbecoming in any person holding a responsible position."

Nehru's views prevailed since Home Minister Sardar Vallabhbhai Patel was able to tactfully manage the matter. As per Nehru's wish, the top slot was given to Justice Bashir Ahmed Sayeed of the Madras High Court in the face of opposition from Justice Kama. Governor-General C. Rajagopalachari agreed with Nehru.

As it is, the judiciary is dependent, if not subservient, upon the executive since it enjoys certain substantial powers under the Constitution. In fact, it could be often vulnerable to the whims of the executive.

During the Indira Gandhi regime, the talk of politically committed judiciary was very much in the air. Mercifully, the question of a committed judiciary is behind us, though, rightly or wrongly, a suspicion persists that the NDA government indirectly, if not directly, wishes to push Indira Gandhi's agenda of "committed Judges" forward. It unsuccessfully tried twice to replace the present collegium system with a National Judicial Appointments Commission (NJAC).

The collegium system became operational not under a constitutional provision or by an Act of Parliament. It has got evolved through Judgements of the Supreme Court over a period of time. The apex court collegium consists of the Chief Justice of India and four other seniormost Judges.

It may be recalled that a five- Judge Constitution Bench headed by Justice J.S. Khehar declared as unconstitutional amendments that sought to be made to create NJAC. A 4:1 majority Judgement stated : "There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher Judiciary".

The collegium system is an in-house arrangement which is supposed to ensure independence of the judiciary. Some critics, however, see it as a non-transparent closed-door affair with no prescribed norms regarding eligibility criteria or for the selection procedure for elevation as a Judge.

To plug the loopholes, a Memorandum of Procedure (MoP) is supposed to guide future appointments. The government is excepted to draft a new MoP in consultation with the CJI. But even after a year or so, the MoP is yet to be finalised for reasons which can be easily guessed. In absence of agreed MoP, it must be said that the government has been somehow slow in clearing the appointments under the cover of security clearance.

In fact, the Parliamentary Standing Committee on Law and Justice noted on December 8 that the government may assume a "veto power" and reject any name recommended by the Supreme Court collegium for appointment as a judge if it succeeds in inserting clauses of "national security" and "larger public interests" in the proposed MoP. We endorse the House panel's views in this matter.

We must keep in mind that we all are under watch : the executive, the judiciary, the legislatures, the Bar and even the media. Each organ of democracy has to conduct itself with dignity and sobriety, not only for the sake of survival today but also for the legacy it leaves for the Generation Next.

An independent Judiciary and its enlightened role is the only hope when the ruling establishment fails to discharge its constitutionally assigned duties fairly and honestly . All the same, it is equally necessary for the judiciary to start the process of reforms at all levels of operations from the lowest court upward. There are roughly 5000 vacancies in the subordinate judiciary where the executive has no role to play. Then, the apex court needs to tackle the problems of long delays, ever increasing list of pending cases, visible and invisible corrupt practices at all levels of judicial process. At stake is the honour, prestige and credibility of the judicial system. Indeed, the Supreme Court needs to examine closely loose ends of the judicial machinery and ensure better transparency and accountability in its temple of Justice.

Finally, we must keep in mind that we all are under watch : the executive, the judiciary, the legislatures, the Bar and even the media. Each organ of democracy has to conduct itself with dignity and sobriety, not only for the sake of survival today but also for the legacy it leaves for the Generation Next.

This is not a matter of ego play between the executive and the judiciary. Nor is there any room for politics. An independent, judiciary is the best safeguard of citizens' rights in a democracy. Equally vital is a forward-looking responsive executive without delaying tactics or political angularities for 'a committed judiciary.'

At stake is the common man's quest for fair and speedy justice. This simple message demands a simple response, especially when it involves vital public interests and the very honour of the judicial system and its independence.