Tuesday, 16 August 2016

Open War between SC & Centre

Times of India dated Aug 13, 2016
The Supreme Court's frustration over its eightmonth-long face-off with the Centre found expression in an open courtroom on Friday Aug 12, 2016 with a bench headed by India's chief justice T S Thakur launching a scathing attack on the government, accusing it of bringing the judiciary to a standstill by stalling the appointments of judges to high courts.

Earlier in October 2015, SC struck down the National Judicial Appointments Commission (NJAC) Act. The NJAC was an attempt by the political class to end the apex court's monopoly over appointment of SC and HC judges.

"There are 478 vacancies in HCs, which is 44.3% of the total strength of judges. HCs have 4 million cases pending. The entire system has collapsed. By the time an appeal can be heard, the accused would have already served a life sentence,“ the CJI told Attorney General Mukul Rohatgi.

The CJI gave Rohatgi a list of 74 names sent by the collegium for appointment and asked him to find out where the proposal was stuck. “If there is adverse material against a person recommended for appointment, please send back his name,“ he said. We will consider the objection. It can be dealt with. That is a legal process. But do not keep sitting on the proposals,“ the CJI said. Justice Thakur cracked the whip after finding out that his tearful appeal to the government in April, to speed up appointments, had not worked. The CJI said, “This log jam in appointment of judges to HCs is unacceptable.There is a stage when we have to ask for accountability. Where is the file stuck for over eight months?"

My View:
Judges appointing judges through Collegium is not only illegal but also unconstitutional. Central Government can't be just for typing and printing of appointment orders body for SC & HC judges appointments selected by collegium which is not a constitutional body and doesn't have even a secretariat. Collegium of judges came into existing through a SC Judgement in 1992 and continuing eversince with its illegal operations without accountability. Judiciary has to be independent after appointments and in their working but appointments is the prerogative of elected executive i.e. Union Government through a set transparent procedure with opportunities to all eligible candidates. In the system of collegium those eligible candidates who are not recommended by members of collegium (judges) will never even get considered undermining principles of democracy.

Today almost all the judges are appointed during Congress led UPA government and their inherent loyalty is towards Congress only. BJP led NDA government will not allow appointment of Congress lawyers as judges, by hook or crook. Hence this stalemate. A tit for a tat. While SC struck down NJAC Act, Centre is retaliating by keeping judges appointment file pending for nearly a year. In the meantime litigants are subjected to abnormal delays and existing judges are terribly loaded. Setting aside National Judicial Appointments Commission (NJAC) Act enacted by parliament by SC, in Oct 2015 in the pretext of some technical issues is nothing but safeguarding their illegally and unconstitutionally acquired powers for appointment of judges in the name of collegium. Courts are meant for interpretation of laws, redressal of litigant grievances while preserving the basic character of constitution. Overstepping to other related areas without expertise and machinery is ridiculous. It would be interesting to see how this matter gets closed properly.

In a Democracy Elected Executive, Parliament, Judiciary and Autonomous Institutions must learn to work within their domain, respect and fear other Institutions. Then only systems will work properly. Otherwise stalemates and collapses would be inevitable leading to anarchy. 

Among all the institutions in a Democracy, Elected Executive stands taller than others.

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