‘Locking the courts out’

Regrettably the Chief Justice of India has found himself constrained to suggest — that too in an open court — that the government is creating a situation where the courts are being locked out.  He has gone to the extent of accusing the government of trying to “decimate the judiciary and lock justice out.” These are strong words and were not spoken lightly. Nor should these be taken lightly. Ever since the apex court has struck down the National Judicial Appointments Commission law, the NDA government has been widely perceived to have embarked on a go-slow policy in the matter of filling the judicial vacancies. The government has studiously ignored the recommendations, made under the collegium-based ancien regime. The idea seems to be to let these self-appointed intrepid judges stew in the juices of huge vacancies. The numbers are staggering as they are revealing: 424 vacancies against the existing strength of 1044 judges in 24 high courts. And, in a kind of battle of wits, the government appears to be in no hurry to frame a new Memorandum of Procedure for Judicial Appointments. A complete deadlock has cast its dark shadow over Tilak Marg.  

The rub is not the number of vacancies but the politicians' dormant desire to tame the judiciary. Every stable and strong government, sooner or later, becomes susceptible to the idea that the judiciary ought to be domesticated. The impulse is both institutional and political. And this current stand-off will not get resolved easily. It is possible that the government feels that, post “surgical strikes,” it has the masses’ approbation and approval behind it and that it is entitled to have its way vis-à-vis the judges. Hence, the itch to confront the court.

 Not since when Indira Gandhi was accused of wanting to browbeat the judiciary by fiddling with promotions and appointments in the apex court has the country witnessed this kind of stand-off between the Supreme Court and the government. Indira Gandhi, of course, has been judged by history as an authoritarian ruler. Since, then, the democratic discourse has vehemently insisted on an independent judiciary as the sine qua non of our republican vibrancy.  And so it shall be.