The face-off between the Executive and the Judiciary has been worsening of late, raising concerns about a full blown showdown. On the face of it, the confrontation is over the stalled appointment of judges. While hearing a PIL last week seeking a direction to the Centre to speed up judicial appointments in High Courts, the Supreme Court had some harsh words for the government. “Executive iction is decimating the institution (Judiciary). Today we have a situation where courtrooms are locked because there are no judges… You cannot bring the entire institution to a grinding halt,” said the SC bench headed by Chief Justice TS Thakur. The accusation that the government is “scuttling” the working of the Judiciary seems to have hit home, with the Law ministry in turn making it clear that the Supreme Court collegium should first clear the memorandum of procedure (MoP), the set of guidelines on appointing judges to the apex court and 24 high courts. The stand-off over the MoP has been building up ever since the Supreme Court struck down the tiol Judicial Appointments Commission (NJAC) Act that the NDA government had ected to end the collegium system of judges appointing judges. But even as it revived the collegiums system, the SC bench left it to the Central government to frame the MoP, to be filized in consultation with the Chief Justice of India and the collegiums. This is where the matter has remained stuck, as the two sides have failed to agree on what the guidelines for judicial appointments should be. And this sticking point figured again in the hearing on the PIL on stalled high court appointments, when the Attorney General informed the SC bench that the process couldn’t be fast-tracked because the MoP is not in place. At this, the Chief Justice reminded the government of its assurance before court that appointment of judges would not be stalled even if the MoP was pending.
As the Judiciary and the government spar over selection of judges, the cases keep piling up. There are three vacancies in the apex court, over 470 in the high courts, and more than 4,400 in the trial courts. So it is hardly surprising that around 60,000 cases are pending in the apex court, nearly 40 lakh in the high courts and a whopping 3 crore in the trial courts. There are still 13 judges per 10 lakh people in the country, when the number should be around 50. The situation has reached such a pass that former Supreme Court judge N Santosh Hegde recently said in anguish that if it takes average 10-15 years for case to be disposed of, people will lose faith in the system. In such a scerio, underground elements may well take over in delivering their brand of rough-and-ready justice, settling disputes and recovering unpaid loans by employing goons, he has warned. Pointing out that there is not a single high court at full strength, with Allahabad High Court having 60 percent and Kartaka High Court 50 percent vacancy, Justice Hegde has called upon the Supreme Court and the Central government ‘to should sit together and thrash out the problem’. In April last, Prime Minister rendra Modi had said his government was ready to discuss the issues with the Judiciary to find a way out. On Monday, while addressing the golden jubilee celebrations of Delhi High Court, he pointed out that ‘the judiciary spends its maximum time with the government’ — because the government happens to be the biggest litigant. It is estimated that the government is party to around 46 percent of court cases ranging from service matters to indirect taxes. The Prime Minister said the load on the judiciary can be reduced if cases are filed ‘after taking a considered view’. This is a constructive suggestion, provided the Central government at last gets down to filize its litigation policy. But the Prime Minister also struck another note by asserting that ‘though controversial’, an All India Judicial Service on the lines of IAS should now be debated. Considering that some states and high courts opposed this idea though it found favour in three chief justices’ conferences back in the Sixties, clearly the PM has opened up another front. With the Judiciary in the Nineties arrogating to itself the power to appoint judges, the perception is that the Executive is seeking to recover lost ground. If this tussle results in a total stalemate, the credibility of both will take a beating — and the rule of law will be another empty slogan in the world’s largest democracy.