The Memorandum of Procedure on appointment of judges to constitutional courts, as restructured by the Union of India, is not acceptable to Supreme Court. It has been returned with modifications, yet again. In the meanwhile, there are 37 vacancies out of the permanent judges’ position of 56 + 19 additional judges — constituting 50 per cent vacancy before Madras high court. Pan India, as against 1,079 (771 +308) vacancies there are 470 (254 + 216) vacancies, which is a staggering number, by any logic, considering the huge pendency of 40 lakh cases before the 24 high courts.
Mr Ravi Shankar Prasad, a practicing senior advocate of Supreme Court who has taken over as the law minister, in the Cabinet rejig, promises an early solution. Honestly, he has more than a handful, considering the divergence in views in reaching a consensus on the Memorandum of Procedure.
The view of the law minister is well known on “the Supreme Court verdict quashing the National Judicial Appointments Commission (NJAC) and restoring the collegium system for appointing judges being a setback for parliamentary sovereignty. In our view this exercise was done after deep consideration of more than 20 years which was part of judicial reforms. We believed NJAC Act would help strengthen judiciary, various commissions headed by eminent judges, including Administrative Reforms Commission and different parliamentary committees had recommended NJAC,” said the then communication minister.
Even former chief justice J.S. Verma had publicly raised misgivings on the working of the collegium system and had suggested a serious think,” he added.
“Our government brought about NJAC bill in a truly remarkable scenario in the country. There was complete political unanimity. The Lok Sabha passed it without a single dissent and in the Rajya Sabha there was only a single walkout. Twenty legislatures of the states unanimously approved it despite the continuous divide in the politics of India,” he had said. Arun Jaitley called it worse, “Democracy cannot be tyranny of the unelected”.
Forget not that the provision relating to the presence of the law minister as part of the selection panel, as per NJAC doctrine, was the sore thumb that struck out, for the apex court to trash the statute as unconstitutional. In a positively sensational development, the Supreme Court had eviscerated the constitutional amendment itself.
But now, the fig leaf offered to the executive vis a vis a Memorandum of Procedure as part of the NJAC offering, is hung on to, by the government, for dear life, to try and salvage the balance with the judiciary.
The inability of the executive to reconcile itself to the judicial supremacy in the appointment of judges to higher courts lies at the very core of this imbroglio.
It is undeniably true that in judges 1 case the Supreme Court yielded to the primacy of the executive.
The Memorandum of Procedure even if skewed in favour of the political class, so much so ‘consultation’ with the Chief Justice of India was mere ‘communication’, was acquiesced in.
Then on, the Judiciary has been hitting back, for in judges 2 case ‘consultation’ was ruled as ‘concurrence’ and then in judges 3 case, a novelty in collegium was given birth to. Judges 4 case was a case of executive conceding the primacy of judiciary and seeking only clarifications under Art.143 (1). Judges 5 was the piece de resistance in resurrecting collegium.
Collegium is nothing but ‘law making’ by judiciary. It is the most extreme example of judicial overreach, if ever there was one. An institution not considered, discussed, debated or even remotely conceived of by the framers of the Constitution led by Baba Ambedkar, was institionalised by a judicial fiat, unheard of in the annals of any judicial framework. Supreme Court anointed itself as the most powerful entity enabling ‘selection of Judges for themselves, by themselves and of themselves’ by a process that Justice Ruma Pal christened as the ‘best kept secret in the world”.
No wonder, the executive is peeved and is using the Memorandum of Procedure as a tool to retrieve a semblance of balance to itself. With the political cleavage between the ruling dispensation and opposition showing too badly, building a consensus all over again is ruled out for now.
The Memorandum of Procedure is snowballing into a Memorandum of Protest. The tussle among the pillars of democracy is for one to stabilise its footing or another to gain a holding where none exists.
Union of India is veritably trying to water down, if not nullify the NJAC verdict. Terms of Memorandum of Procedure are but a ruse. A devious procedure, yet, there is no other avenue. As for the pendency, when elephants fight, it is the grass below that gets trampled upon. Which elephant would blink first? In the meanwhile, the litigants can do what? — eat the trampled grass, maybe.
(The writer is an advocate practicing before Madras high court)
