Collegium on trial

The judiciary has been in the news for quite some time now for some not-so-good reasons: the January revolt by four senior judges of the Supreme Court over the roster system against the Chief Justice of India Dipak Misra in January this year, followed by the move by the Congress and other political parties to impeach the CJI for misbehaviour, and Law Minister Ravi Shankar Prasad’s six-page letter to him raising objections to the elevation of Uttarakhand High Court Chief Justice K M Joseph to the highest court as judge.

Justice Joseph’s proposed appointment has been returned by the Union Law Ministry to the SC collegium for reconsideration citing these reasons: one, he is junior to 41 high court judges, being at serial number 42 in the all-India seniority list of HC judges; second, 10 high courts have no representation in the SC; third, his parent high court in Kerala is over-represented in the Supreme Court and high courts.

All these objections of the Centre are unpersuasive and raise suspicion whether his appointment has been blocked for other reasons. Seniority alone is not the sole consideration for elevation of a judge to the SC. There are quite a few instances of senior judges and chief justices being overlooked in favour of more deserving incumbents.

Suffice it to say that SC judges Ranjan Gogoi, Mohan Shantanagoudar, S Abdul Nazeer, Naveen Sinha and Deepak Gupta were all chosen over their seniors. When the lack of seniority didn’t make any difference in their cases, how can it be cited as one of the main reasons for not elevating Justice K M Joseph to the SC.

At present, Justice Kurian Joseph is a single sitting judge in the SC, who is due to retire in November. If elevated after reconsideration, Justice K M Joseph will be a single judge in the SC from the Kerala high court. Similarly, out of four high court judges from Kerala, two will retire shortly and there will be only two judges left from that state. Hence the question of over-representation from Kerala, either in the SC or in HCs, does not arise at all. On the contrary, the high courts of Allahabad, Bombay and Delhi are grossly over-represented in the SC, but this is not being talked about by the law minister for reasons best known to him.

Law Minister Ravi Shankar Prasad also wants Scheduled Caste and Scheduled Tribe representation, which the highest court of the land has missed for long. Nobody is averse to accommodating them in the highest echelon of judiciary, but that has nothing to do with Justice K M Joseph’s case.

At present, with the retirement of Justice Agarwal, there are seven vacancies in the SC, and Justices Jasti Chelameswar and CJI Dipak Misra are also due to retire within the next few months. If the government is really interested in bringing in SC/ST category judges, there is ample room for them.

There is hardly any escape, therefore, from the conclusion that Uttarakhand High Court Chief Justice K M Joseph is being denied elevation to the SC on flimsy grounds. The reason is altogether different and obvious. It is believed that he has displeased the Narendra Modi government by ruling against the imposition of President’s rule in Uttarakhand two years ago.

In May 2016, the SC collegium had recommended Joseph’s transfer to the Andhra Pradesh and Telangana high court on health grounds. That, too, was stalled by the law ministry, presumably for the same reason.

Even otherwise, the government and judiciary are on collision course. As a result, 400 posts of judges are lying vacant in the country’s 24 high courts. The process of filling them up has been deliberately and intentionally stalled by the government because it wants to have a greater say in judicial appointments and is not happy with the idea of judges appointing judges.

The Allahabad High Court, which has a sanctioned strength of 160, is 60 judges short. Lawyers of the Calcutta High Court have just ended a long-drawn strike after five judges were appointed, bringing the number to 37, compared to its full strength of 72. The BJP has always been intensely critical of the way Indira Gandhi sought to pack the court in the 1970s. It would be tragic if it emulated her and, in the process, struck a lethal blow to the judicial system and the rule of law.

Pendency of cases

The judiciary-government stand-off over the Memorandum of Procedure (MoP) is inordinately delaying judicial appointments in the superior courts. Inadequate manpower and poor infrastructure is leading to huge pendency of cases. The victims in this situation are hapless litigants and poor undertrials whose cases drag on for years. Any attempt at securing justice is an ordeal and financially ruinous for many who knock on the doors of courts for justice and relief.

Under such pressing circumstances, it should be the top priority of the government to resolve its differences with the judiciary as the two are vital pillars of democracy and share a common goal of dispensing speedy justice. It is not prudent for them to be locked in an ugly confrontation like this. Whatever the selection process of judges in place, it should be honoured and speeded up to fill vacant positions in all courts as inadequate judge strength seriously hampers the judiciary’s ability to deliver justice on time.

However, if the government cannot reconcile itself to the present collegium system of appointments, it should work to revive the NJAC model again in such a manner that it survives judicial scrutiny. But, dragging its feet on much-needed appointments is hardly the way to deal with the problem of delivering speedy justice to millions while trying to find a solution to the specific question of how judges should be appointed.

(The writer is advocate, Supreme Court)