Frustration in the higher echelons of the judiciary appears to be consolidating into anger. Poignant appeals have morphed into indignant warnings. The delay in filling up vacancies in the country’s badly understaffed higher judiciary has reached a flashpoint. When the Chief Justice of India, T.S. Thakur, made an emotional appeal to Prime Minister Narendra Modi in April to rescue the judicial system from its enormous work burden and chronic shortage of hands, it was hoped the executive would galvanise itself and expedite the process of appointing more judges, at least in the high courts. As it turns out, Justice Thakur’s appeal has not had the desired effect, and he has now hardened his stand to the point of issuing an overt warning of judicial intervention in what would normally be an administrative matter. The situation is so grim that he has said the government “is now attempting to bring the judiciary to a grinding halt”. With 478 posts out of a sanctioned strength of 1,079 high court judges lying vacant — an unacceptable 44.3 per cent — the CJI’s frustration is understandable. Justice Thakur’s revelation that a list of 74 names sent by the collegium for appointment as high court judges has been stuck in the corridors of power since January would suggest government indifference. The logjam the Chief Justice mentions is an inescapable reality, and the government owes an explanation, if there is any, for its tardiness.
However, one must ask whether the impasse is only about shortage of hands and the burgeoning docket. Is the real reason some specific issue on which the judiciary and the executive are in grave disagreement? It is known that the government wants to incorporate in the memorandum of procedure for appointment of judges the power to reject recommendations from the collegium on the ground of ‘national interest’, whereas the judiciary opposes such a veto clause. It is equally possible that there is no particular reason, and it is just that the lumbering government machinery has been misunderstood. Whether or not there is an underlying cause, it is the NDA government’s duty to dispel the impression that it is deliberately going slow or that it is indirectly giving vent to its own frustration after its plan to establish a National Judicial Appointments Commission was thwarted by the court. The situation is not yet out of hand. Practical solutions can be found if the two branches come together. In a matter that requires a good deal of consultation and cooperation, this incipient confrontation must not be allowed to grow, for that would be as injurious to the public interest as the current crisis facing the judicial system is.
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