Unhealthy trend

It was an English court which in 1924 laid down the principle that, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” That’s a golden precept that Law Minister Ravi Shankar Prasad and the BJP government should keep in mind when dealing with the judiciary. It’s become almost impossible to dodge the conclusion that the Centre is offering flimsy arguments for not elevating Uttarakhand High Court Chief Justice KM Joseph to the Supreme Court. It’s believed Joseph displeased the government by ruling against President’s rule in Uttarakhand. In May 2016, the Supreme Court collegium recommended Joseph’s transfer to the Andhra Pradesh & Telangana High Court and that was stalled by the law ministry. An RTI petition 15 months later elicited the terse, meaningless reply that, “the matter is still under the consideration by the government.” The law minister offered two arguments against elevating Joseph to the Supreme Court. First, he’s low on the seniority list. Second, there’s already one Supreme Court judge from Kerala. Against those arguments, it’s been noted that several Supreme Court judges were relatively junior at the time of their elevation. Also, it’s not that unusual for Kerala to have two judges in the highest court. Anyway, Kurian Joseph, the other Kerala judge, retires in November. The SC collegium will now meet on Wednesday and if they resend Joseph’s name, it’s generally thought the government will be obliged to make the appointment.

The catch, though, is that the collegium’s second recommendation must be unanimous and the court has shown in recent months it’s seriously divided. If, on the other hand, the government again sits on the collegium’s recommendation, we're headed for a full-blown constitutional crisis. The only such crisis before was soon after the Kesavananda Bharati fundamental rights case in 1973 when three judges were superseded by Indira Gandhi and resigned. Now, there are multiple threats to the judiciary. At one level, the Vice-President’s refusal to admit the Opposition’s impeachment motion against Chief Justice Deepak Misra is almost certain to face a court challenge. And in February, we witnessed four collegium judges holding a press conference because they’re unhappy at the way the court is being run.

Even otherwise, the government and the judiciary are on collision course. Vacancies in the high courts have risen to a record high and, again, the government’s clearly stalling because it wants a greater say in judicial appointments. The Allahabad High Court, which has a sanctioned strength of 160 is 60 judges short. Lawyers at the Calcutta High Court have just ended a long strike after five judges were appointed, bringing the number to 37 compared to its full strength of 72. There are over a thousand vacancies in the high courts. The BJP has always been intensely critical of the way Índira Gandhi sought to pack the court in the 1970s just before the Emergency. It would be tragic if it emulated her, and in the process, struck a lethal blow to the judicial system and the rule of law.