Battle lines drawn, two powerful pillars of democracy shaking

The standoff between a section of the judiciary and the Narendra Modi government at the Centre has sharpened with the Government returning to the judicial collegium its recommendation to elevate the Chief Justice of the Uttarakhand High Court, Justice KM Joseph to the apex court.

While the protocol is to return for ‘reconsideration’, it amounts to a rejection. It is in the realm of speculation whether the Supreme Court would in turn return the recommendation to the Government after ‘reconsideration’ or let the matter rest at that. If the apex court pushes, there is lack of clarity on how far the judiciary can go and whether the executive is bound to follow the repeat recommendation.

Unless Chief Justice of India, Justice Dipak Misra, defuses the situation, the confrontation could well get worse with consequences for the litigants who are already plagued by delays.

To make matters worse, politics has soured the pitch further with the Congress joining issue with the Modi government, with former minister and leading lawyer Kapil Sibal calling it an assault on judicial freedom.

The battlelines are indeed drawn and two powerful pillars of democracy are shaking. A solution needs to be found to the tangle over appointment of judges, the delay in which is multiplying the problem of huge backlog of cases in the apex court, high courts and subordinate courts.

The Congress on its part has no feet to stand on in regard to its objection over the Modi government returning the collegium’s recommendation. During the Emergency in the 1970s, it was Indira Gandhi’s Congress government that had superseded three senior judges and foisted Justice AN Ray as chief justice defying all norms of propriety.

The government’s reasons for sending the recommendation back to the judiciary are not entirely convincing. While its principal reason cited is that the said Justice Joseph is ranked 42^nd in terms of seniority among high court judges and that there are 11 high court chief justices who are senior to him, the other two reasons are unconvincing---that Kerala to which Justice Joseph belongs is already adequately represented and the need to have representation from the scheduled castes and tribes.

The more likely cause which BJP’s critics are citing—that the said judge had overturned President’s rule in Uttarakhand and restored a Congress government--- and that the BJP was seeking to teach him a lesson—is apparently more convincing and puts the government’s fairness in doubt.

With the unprecedented media conference by four senior judges against Chief Justice Misra and the subsequent demand by several Opposition parties for CJI’s impeachment, the judiciary is passing through rough times.

It is no longer seen to be on a high pedestal as it always was and can do with a refurbished image that may bring the old glory back.

A healing touch is sorely needed which can come about only if both the Government and the judiciary lend a helping hand.

The next big flashpoint could come when and if Justice Gogoi who was one of the four revolting judges and is next in line for elevation to Chief Justice were to be superseded when Chief Justice Dipak Misra retires.

With politics deeply enmeshed in the judiciary, such a course could indeed disturb a hornet’s nest.

It is now widely recognised that the collegium system of appointment of judges has not stood the test of time and needs to be reformed. That Justice Karnan of the Kolkata High Court had to be jailed for contempt recently was a reflection on the process of selection.

In the interests of the institution, it is time such pending issues are settled in the right spirit and in a manner that reflects the majesty and dignity that befits the judiciary.

Only when the decks are cleared for appointments will there be the possibility of addressing the issue of backlog of cases to bring fair play and justice in the right context to the army of litigants in the country.