B L Saraf
While explaining merits of the demonetization of the high denomination currency notes, Finance Minister – Arun Jaitely inserted new “normal “in the politico – economic lexicon of the country. He said, henceforth, adherence to the principle of probity and efficiency will define new “normal” in the matters of governance. This new ” normal” will, if we believe FM, replace the earlier one which’ characterized corruption and inefficiency in the executive governance of India; acquiesced by many, either by design or default.’
There is a golden principle in the grammar of vocabulary and the science of dictionary that when a new word finds place, therein, the opposite of it, along with all its antonymic connotations, simultaneously, gains the entry. Opposite of ‘normal ‘is the “abnormal ‘. We fear ‘ the opposite’ is gaining the currency in the Executive – Judiciary relations: which, unfortunately, seem to have gone frosty.
As of today, we do not have any hint that the relations between two important organs of the state will thaw in the near future. Available trends indicate the opposite. Tension between Executive and the Judiciary is flaring up day by day. In a function held to celebrate the making of our Constitution, CJI Justice T.S Thakur referred to the shortage of Judges in various high courts and the tribunals, and made a plea for the governmental intervention in this regard. Union Law Minister, Ravi Shankar Prasad, who was also present on the occasion, struck a different cord and said that central government has made 120 appointments this year. Suddenly, both the sides found a virtue in the “Lakashman Rekha”, and, virtually, accused each other of violating it. Law Minister referred to the Emergency of 1975 and lamented that in this period the Apex Court ‘ failed the nation.’
The dark period of Emergency is the past. We are living in the present, with today’s issues confronting us. It will serve no body to recall the past only to score a point. Unfortunate it may be, a confrontational stance is visible. When the justice delivery system is on the verge of collapse – for variety of reasons, the developing scenario doesn’t portend well. One may say so, relations between the judiciary and the executive were never ideal, in the past. Apex Court’s decision to annul the law of judicial appointments Commission, replacing the collegium system of appointment of judges to the high courts, has, probably, aggravated the situation.
While as the supremacy of the judiciary in making appointment of the judges is paramount and must be respected; Central governments say – howsoever little it may be – has to be conceded in the exercise. After all, the elected Central government that is accountable to the electorate for its successes and failures – including the one on the judicial front. Then, the state has the wherewithal to access the antecedents of a candidate that may not make him / her suitable for the job. The central government as also the Apex judiciary will have to introspect a bit. There’s an impression that the judiciary has overstepped in larger areas, which may or may not be good. There is need to dispel the impression that judiciary is, only, for the high and mighty. Government must stop acting in arbitrary manner.
Formalization of Memorandum of Procedure (MOP), meant for laying down parameters for consideration of a prospective candidate for the Judge’s post has become a bone of contention between the parties – one expressing lack of faith in the other. Appointment of Judges, both after the collegium system was brought in the picture or prior to that, has attracted the criticism. So neither can profess a holier than thou claim. Under these circumstances, both sides will have to reflect coolly, in a non- egotistical atmosphere and act fast in the right spirit
We believe both the important organs of the state are well-intentioned to have required number judges to steer the justice delivery system. Along with the quantity, quality must be given the due. While there is no denying that paucity of the judges, at different levels of the judicial hierarchy, does affect efficiency of the justice delivery system, it is equally true that quality of the judges, at these levels, is also a big factor in clearance or accumulation of the arrears. We are reminded of an observation made, in this context, by a former C JI that it is better to leave a position vacant than to fill it with an undeserving person.
PM Narendra Modi may have to intervene, personally. A robust justice delivery system in the country is a sine- quo – non for a good and reformed economy. PM must recall what eminent lawyer; Falli S Narriman has to say about his colleagues – the high – profile lawyers with political inclinations: and, for a while, keep off his Law Minister and Finance Minister (High profile lawyers) from the business. He writes,in his book Before Memory Fades – Hay House p383,
“Swarn Singh – India’s foreign minister in Indira Gandhi’s government in 1975 – told me about the exercise undertaken by Indira Gandhi, during the days of internal emergency in 1975, to clip the wings of Article 226. She had constituted a Constitution Committee with Swarn Singh as the chairman which included three prominent practicing lawyers. While as the three eminent lawyers fervently wanted to scrap Article 226 it was Swarn Singh – a non-practicing lawyer – who set his face against abolition of Article 226. Moral of this story is that we should avoid relying on high – profile lawyers (with political inclinations) because with their argumentative skills, they are able to rationalize all forms of tyranny.”
Ever since he has taken over as the head of Indian judiciary, Justice T S Thakur has been trying hard to put the justice delivery system on the fast track. Sometimes beseeching, at times threatening to invoke the judicial powers, he is always seen making an endeavour. But little seems to have worked for him. Indeed, it will be tragic if a well-meaning and well-intentioned head of the Indian Judiciary has to bid farewell to the great institution as an ‘unsatisfied ‘ and ‘sad’ person – if not a disillusioned one.
(The author is former Principal District & Sessions Judge)
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