The stand-off between the government and the judiciary over the process of judicial appointments, particularly to the higher judiciary, has resulted in a stalemate leading to restricted fresh appointments and inordinate delay in raising the retirement age of judges. This has added to piling up of cases in various courts across the country.
As per official figures, about 45 per cent of the sanctioned posts of judges across the 24 high courts in the country are lying vacant. There are as many as one crore pending cases in various high courts, some dragging on for decades.
As per Supreme Court‚Äôs own statistics, nearly a crore cases are pending in various high courts while there are more than 2.18 crore cases pending in district courts across the country. It said that nearly 23 lakh cases are pending for over 10 years.
The controversy surrounding a Calcutta High Court judge, Justice CS Karnan, whose maverick behaviour had been hitting the headlines, has bought focus on the issue of the system of selection of judges. Not only had he been defying the directives of the Apex court, he had the temerity of even ordering five-year jail term for the Chief Justice of India and seven other Supreme Court judges.
In his order, the judge said that they were awarded ‚Äúpunishment for offences punishable under the Scheduled Castes/Scheduled Tribes Atrocities Act 1989 and the amended Act of 2015‚ÄĚ. He had claimed that he was being discriminated against because he belonged to the SC/ST category.
His judgement was, of course, stayed by the Supreme Court which struck back at him for committing Contempt of Court and sentencing him to six months imprisonment. The apex court had also ordered a medical examination on the judge to check his mental fitness.
But in the first place, the Supreme Court must examine the circumstances and facts relating to very appointment of Justice Karnan as a judge in the first place. He was elevated to the High Court in 2009 and first hit the headlines two years later when he approached the National Commission for Scheduled Castes accusing his brother judges of ‚Äúdiscriminating‚ÄĚ against him because he was a Dalit.
Red flags should have gone up in judiciary even at that time but the higher judiciary did not take any notice. He again made news when he walked into a Supreme Court room which was hearing a Public Interest Litigation regarding names recommended for the post of judges and claimed that the selections were not fair.
Evidently fed up by the unusual behaviour of the judge, the Madras High Court Chief Justice had recommended his transfer to some other court and Justice Karnan promptly approached the National Commission of Scheduled Castes again. Continuing his wayward behaviour, he suo motu stayed an order of his senior, the then Chief Justice of the High Court on the selection of civil judges. The apex court then had to step in to stay his orders.
Subsequently, Justice Karnan went berserk and even levelled charges of corruption against about 20 senior judges. He even issued summons against the Chief Justice of India and six other Supreme Court judges.
Clearly, Justice Karnan had crossed all limits of civility and decent behaviour behooving a high court judge. Sentencing him to jail for six months may evoke conflicting legal opinion but the top court has justified the unprecedented step given the damage he was doing to the image of the institution of judiciary.
The entire episode has cast a shadow over the sacred institution of judiciary, one of the three pillars of democracy, and which is supposed to be the guardian of the constitution. The confrontation has undoubtedly damaged the prestige of the judiciary which is certainly not good for our democracy.
In fact Justice Karnan may have unwittingly helped strengthen the stand of Modi government on the process of appointment of judges. Questions are being raised on how come judges like him can be appointed in the first place under the current system which is entirely controlled by the judiciary itself.
The NDA government had been stressing that the current system must be amended to include government representatives in the selection process. The government thinks that under the current system judges with ‚Äėdubious‚Äô or even ‚Äėanti-national‚Äô nature may get appointed without a proper check at their antecedents.
On the other hand, Supreme Court and top lawyers hold the view that the government may block appointments recommended by the collegium comprising the Chief Justice of India and senior most judges of the Supreme Court, and bring in judges who are either politicised or those who have the ability to pull strings. The government can now make an example of Justice Karnan as a poor choice due to the current system of selection of judges.
The issue of Justice Karnan has weakened the stand of the judiciary. It would be difficult for it to defend the initial selection of such a judge. The hands of judiciary are also tied because the only way to remove a sitting high court judge is through the long and difficult process of impeachment- for which again government‚Äôs help is required.
The confrontation between the judiciary and the government has led to some strange and disturbing spectacles in the recent past.
Anyone would recall an incident a few months ago when the then Chief Justice of India T S Thakur broke down in full public view while referring to the delay in appointment of judges and the piling up of crores of cases. In the presence of the prime minister, and in full glare of media, the then Chief Justice broke down on the stage and blamed the government for delay in dispensing justice to the people due to severe shortage of judges.
Justice Thakur said that since 1987, when the Law Commission had recommended an increase in the number of judges from 10 judges per 10 lakh people to 50 judges per 10 lakh people, ‚Äúnothing has moved‚ÄĚ even though there is an increase of 25 crore population since then. The ratio in most developed countries is 15 judges for 10 lakh people.
On an earlier occasion, he as the government had cautioned each other against crossing the ‚ÄúLakshman Rekha‚ÄĚ.
The relationship between the Centre and the judiciary had been steadily worsening ever since a Constitutional bench deemed the constitution of National Judicial Appointments Commission (NJAC) Act unconstitutional and ordered the drafting of a new Memorandum of Procedure (MoP).
The spat between the government and judiciary is doing no good to the general public. Coming on the heels of the controversies involving Justice Markanday Katju and Justice Soumitra Sen, both retired judges, the controversy involving Justice Karnan must force the higher judiciary to sit up and take remedial steps. There are also disturbing reports about corruption and serious allegations have been levelled against some judges which remained unverified.
It is high time the government and the judiciary sort out all the issues between the two, including the mode of selection of judges and filling up of vacancies, at the earliest and provide some relief to the general public.
It is also time for the government to drastically cut down its litigation and find ways of expeditious settlements outside the courts. Steps must be taken to avoid wastage of crores of mandays in the courts. Laws need to be simplified and time bound method be evolved to dispense justice.