By Niteeen Pradhan
The nation continues to be subjected to an unseemly tug-of-war between the government and the judiciary, taking relations between the two constitutional pillars to a new low with no sign that the dispute will be resolved in a hurry. This is a sorry state of affairs, coming on top of the unsightly act of a Chief Justice of India shedding tears in public in the presence of the Prime Minister to drive home his point on delays in judicial appointments. This was followed by the comments of the Chief Justice on the Prime Minister’s I-Day speech from the Red Fort with words that were completely out of place. Never before in independent India’s history, right from the day the Supreme Court was inaugurated on January 28, 1950, have we reached such a pass.
These are uncomfortable questions for the judiciary but they are reasonable questions and they have been asked before by voices outside the Chambers. Now coming from within the judiciary itself, they lend a new sense of urgency and demand a revisiting of the manner of functioning of the Collegium, which after all is one of the highest and most powerful bodies making appointments at the senior most rungs of our judiciary.
At the heart of the dispute now are differences between the executive and the judiciary on the government’s proposed Memorandum of Procedure (MoP) that sets out the working of the Collegium of Judges (comprising the Chief Justice of India and four other senior most Justices of the Supreme Court) that decides on appointments and elevations/transfers of Judges of the Supreme Court and the High Courts. These courts now have a total of 434 vacancies, appointments to which remain held up pending an agreement over how the Collegium should work.
The tussle over the so-called MoP of the Collegium, the prolonged nature of the dispute and the stalling of appointments in the interim has all the marks of a high stakes power battle in which no side wants to climb down. Into this dispute now comes a new turn with reports that one of the Justices of the Collegium, Justice Jasti Chelameswar, kept away from the latest meeting and sent a letter instead demanding accountability, transparency in the working of the Collegium and that the Collegium record the reasons of its decisions.
These are uncomfortable questions for the judiciary but they are reasonable questions and they have been asked before by voices outside the Chambers. Now coming from within the judiciary itself, they lend a new sense of urgency and demand a revisiting of the manner of functioning of the Collegium, which after all is one of the highest and most powerful bodies making appointments at the senior most rungs of our judiciary.
Right now, it is a fact that the Collegium functions like a closed-doors brotherhood and no one in the end might know why a particular candidate was chosen and why another was rejected. There is no set procedure, there are no rules and what is discussed behind closed doors is forever unavailable to the public, now or even years later, because there are no records of what was said, of any dissent that might be aired or indeed the nature of the discussions itself.
The Judge raising the issues now has pointed to these very concerns, arguing (as widely reported) that that it could lead to all kinds of arbitrariness in the decisions of the Collegium. Not heeding concerns like these raises fears that the judiciary has started asserting itself as a State larger than the State, taking a particularly assertive stand at a time the government of the day, which enjoys a thumping majority in Parliament, is pushing back. If there are sections that have worries on how the executive might interfere with the functioning of the judiciary, then there are equal concerns on judicial overreach in our system of Parliamentary democracy.
The three limbs of the Constitution are interdependent and each one of them has to work within the given framework that has stood the test of time. A free and independent judiciary is a sine qua non for India to thrive as a democracy and as a nation known for the rule of the law. But at the same time, this cannot be translated to mean such a skew in the fine constitutional balance that the judiciary becomes larger than an elected Parliament and encroaches on its power to enact legislation.
In this context, it is instructive to study this interesting passage of a speech delivered by Jawaharlal Nehru, while inaugurating the Supreme Court on January 28, 1950, in the Court House at King Edward Road, New Delhi. This was in the presence of the five Judges of the Supreme Court. He said, as quoted in the book, ‘Supreme Court in Quest of Identity’ by Gobind Das: “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there it can point it out, but in the ultimate analysis, where the future of the community is concerned no judiciary can come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of Parliament... But it is obvious that no Court, no system of judiciary can function in the nature of Third House, as a kind of Third House of correction. So it is important that with this limitation the judiciary should function.”
The Memorandum of Procedure, therefore, requires to be considered by taking into account the minority opinion to be reconciled with the majority view and the will of the sovereign i.e. the Parliament. This reconciliation at the earliest is, in the best of the interest of the judiciary, executive and Parliament, and that of the Republic.
(Niteen Pradhan is a senior practitioner at the Bombay High Court)