How CJI Thakur got burnt out before Diwali
A huge spat has emerged between Chief Justice TS Thakur and the government. A bit of background. In 2014, the Constitution was amended and a legislation passed for a National Judicial Appointments Commission (NJAC).
On October 16, 2015, by 4:1 the NJAC was rightly struck down by the apex court, restoring the Supreme Court-dominated collegium which was invented to avoid political domination instrumented through law ministers.
Anyway, the Justice Kehar NJAC Constitution Bench made a colossal blunder in NJAC-II of December 16, 2015, allowing the government to propose the Memorandum of Procedure (MOP).
Authority
NJAC II should have let the SC prescribe the MOP, and not created a problem looking for a solution. As a historian said: “Never was conquest so easy. Never, too, was it so easily squandered away.”
The MOP of the government was rejected by the Supreme Court. Amendments were exchanged, rejected, exchanged. By July-August, Chief Justice Thakur was worried and frustrated.
At a function attended by Thakur and Modi, Thakur wept publicly. On Independence Day, Thakur made an inappropriate remark as to why Modi had not mentioned the needs of the judiciary from the ramparts of the Red Fort - to be given a strong reply by minister Ravi Shankar Prasad.
The Chief Justice found himself getting short tempered in court. On October 22, 2016, the Chief Justice said to an unruly lawyer: “Shut up, Shut up I say, I will get you thrown out.”
The authority of a CJI does not need to “shut up” in judicial vocabulary. Oddly, Justice Thakur, sitting in Court No 2 was the epitome of calm, courtesy, firmness and humour. What happened?
Acting on the judicial side, judges can coerce the mighty state by passing judicial orders. But dealing with them on the administrative side can be irksome on two fronts: finance and appointments.
Many high courts have resolved financial issues adroitly, but not always. The Supreme Court’s first big break on this came in the Chandrachud Senior era (1978-85).
This government obviously realised it could stall the emotionally overcharged CJI over the MOP. My suspicion is that the gang of four from the government were the PM (as advised), Arun Jaitley, Ravi Shankar Prasad and Attorney General Mukul Rohatgi.
They wanted the power to appoint high court and Supreme Court judges, just as the Congress did in the 70s, 80s and 90s. A Hindutva judiciary. There are already four in the SC with Hindutva biases. Soon the die was cast. The media turned against the judiciary calling it a “self-selecting elite”. The litany of distrust increased.
On September 20, a petition to restore the collegium was peremptorily dismissed. But the government upped the ante. As Thakur’s judgments became more obsessive by refusing to hear any arguments, his manner did not win him many friends in public.
He declared: “Fall in line or we’ll make you”. He was joined by Ex-CJI Lodha whose committee Thakur endorsed.
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| The Centre’s response on October 5 was that the appointment of judges was the government’s “top priority”. (Photo credit: India Today) |
Negotiations
Thakur had no choice but to negotiate. On September 20, Thakur declared the MOP issues with the government would be resolved in the next two weeks. The next day he went for a heart check but mercifully was fine.
The appointment ball started rolling. On September 17, five high court CJs were designed for appointment. The news was Thakur met Modi in Ahmedabad and praised Gujarat even though Gujarat had 5,13,254 cases (22 per cent of all) pending.
But if because of the Modi meeting Thakur sounded hopeful on September 22, on that date the government was sitting on the appointment of 75 high court (HC) judges. The next day two Jharkhand appointments were cleared. This did not prevent Thakur from threatening the BCCI to fall in line (end September).
Resolution
By October 1, 2016, Thakur wanted the Centre to relieve overburdened courts on legal services, chastising it for “sheer apathy indifference or incapacity”. The Centre’s response on October 5 was that the appointment of judges was the government’s “top priority”.
The day before nine additional judges were made permanent in Calcutta’s High Court and 17 more HC judges were in the fray for Calcutta and Madhya Pradesh.
On October 28, the CJI in court warned the Centre. “Our tolerant approach seems not to be working. If you go on like this, we will reconstitute the five-judge bench (to prevent the government)… scuttling judicial appointments till it frames a new law. We will summon secretaries of the department of justice and the PMO.”
Diwali intervened. Thakur retires on January 4. He has 30 working days. Was Thakur a good judge? History will decide. Was he a good Chief Justice? History will not speak necessarily in his favour. Will he be able to resolve the appointment issue before retirement?
Decidedly not. As the CJI dealing with the government, he has been undiplomatic, threatening, frustrated and ineffective.
The original NJAC struck down by the SC was biased and hopeless. We do need a new rigorous, transparent and effective NJAC. The government has played a waiting game with Thakur and succeeded by thwarting the Supreme Court’s judgment.
His badly thought out strategy has been reduced to ashes leaving him burnt out. The government’s behaviour is atrocious. Sadly, it has the upper hand.
(Courtesy of Mail Today)