Opinion Government’s turn

While it was not incumbent upon Prime Minister Narendra Modi to allude to the delay in making judicial appointments in the course of his Independence Day address, as Chief Justice of India T.S. Thakur had evidently expected, the judiciary, bowed down by a pendency load of over 22 million cases, is within its rights to voice its concern about the issue at every opportunity. Clearing appointments to the 478 judicial posts now lying vacant is a necessary step towards reducing this disastrous burden, and the government should be more communicative on the matter than it has chosen to be. The CJI had made public his anguish in April about what he sees as an attempt to trammel the judiciary, with an emotional appeal to the prime minister. Last week, he threw down the gauntlet in open court, suggesting that the judiciary would not shy away from a confrontation with the government on the matter.

While some dynamic tension between the pillars of democracy is beneficial, keeping the system taut and responsive, confrontation indicates that conversation, on which the working of a constitutional democracy rests, has broken down. In this case, the perceived unresponsiveness of the government may be drawing the country too close to a red line. Last week, the CJI had rejected Attorney-General Mukul Rohatgi’s assurance that the matter would be taken up at the highest level. On Independence Day, while speaking to his peers, Justice Thakur was actually addressing that very level, and he should not be denied a response.

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A face-off over who has the decisive say in judicial appointments has been inevitable ever since the Supreme Court struck down the National Judicial Appointments Commission Act last year. The government and the judiciary have been drafting a memorandum of procedure governing appointments, and it is high time that the impasse, and the government’s silence over clearing appointments, are broken. The government’s stated interest in transparency and wide consultation must be offset against the legitimate suspicions of the judiciary about “eminent persons” and its discomfort about sullying the future prospects of judges by leaving adverse comments on the record. Appointments cannot be held off indefinitely once a process towards a new procedure has been set in motion. Delay amounts to a democracy deficit, since it reduces access to a functioning system of arbitration and interpretation. As CJI Thakur has observed ruefully, it takes longer now to secure justice than it did in the courts of the Raj. Delay in judicial appointments cannot be brooked beyond a point, because it risks compromising the courts to the extent that democracy becomes an injured party.