It is telling that a standoff between the judiciary and the executive should play out in open court, with the Chief Justice of India presiding, days before Independence Day. “Don’t try to bring this institution to a grinding halt... That’s not the right thing to do,” CJI T.S. Thakur stated in despair on Friday. Trouble has been brewing for some time. While the government has made shallow promises, it has done little to fill judicial vacancies, and lakhs of cases are piling up in the high courts and the Supreme Court (to say nothing of the lower courts).
As the CJI said, high courts are functioning at 40 per cent of their sanctioned strength, and people are having to spend years in jail without trial for want of judges. In dealing with a PIL by a retired Army officer, a three-judge bench headed by the CJI bluntly told attorney-general Mukul Rohatgi that the names of 75 judges for posting to various high courts had been sent to the government in February, March and April but the government had not moved. “Where is the file stuck?” the CJI asked.
Justice Thakur said if there were any adverse reports against a judge, the government should let the Collegium headed by him know. The government is silent. The court said it is hesitating at this stage to “intervene judicially”, and the A-G pleaded with the CJI not to issue notice to the government. The CJI asked the government not to stonewall transfers and postings at the high court-level merely because the memorandum of procedure was still being worked on.
With Prime Minister Narendra Modi in the audience at the conference of high court and Supreme Court judges in Delhi last April, the CJI wept as he pleaded for speedy filling up of judicial vacancies. Not doing so impacts democracy, he noted. Mr Modi chose to intervene and haughtily asked judges to cut their vacation time and work harder, drawing an unprecedented response from Mr Thakur, who observed that members of the higher judiciary wrote judgments when out on vacation with their families.
Clearly, the file hasn’t moved since April. There is another important instance of insult to the judiciary. In April 2015, Mr Rohatgi sought to upbraid then CJI H.L. Dattu for not helping give effect to the implementation of the National Judicial Appointments Commission Act and had the temerity to suggest that the CJI was “triggering an avoidable constitutional stalemate”. The government’s attitude is not encouraging, and Parliament should ask a few questions.
