There seem to be serious differences between the Supreme Court and the Narendra Modi government over the appointment of high court judges. The two sides cannot seem to agree on the Memorandum of Procedure and consequently many posts have been vacant since February or March.
There can be no dispute that the vacancies should be filled promptly. But such issues at a high level are best resolved by consensus not confrontation. Both the Supreme Court and the Union government are the highest bodies of the state in their respective domains and must coordinate with each other and work in mutual respect if the system is to function.
Confrontation between them will achieve nothing, and will indeed worsen the situation.
For quite some time, the Chief Justice of India (CJI), T.S. Thakur, has been making sharp and even confrontational statements which are bound to exacerbate the problem further. For instance, he openly accused the government of inaction at a meeting where chief ministers and chief justices from all the states and even Prime Minister Narendra Modi were in attendance.
One can understand the CJI’s concern over the continuing vacancies, but discussing the matter during a televised speech before a large audience instead of in a private conversation probably contributed to the perception of animosity between the judiciary and centre.
In open court, the CJI announced that he will send for and examine the recommendations that the government has received for candidates for the open high court posts. However, it is unclear how the CJI would achieve this or how much this situation might escalate. The government could easily refuse his demand by claiming the files are confidential and cannot be disclosed in court. If such a situation arose, the court might choose to follow through on the CJI’s wishes by issuing a contempt of court notice to the prime minister. This would only widen the gap between the two institutions.
The two sides missed another chance for closed-door collaboration and dialogue on Independence Day by turning to a public forum again. Justice Thakur, who attended the the official event at the Red Fort, returned to raise the national flag at the Supreme Court. At the SC’s flag hoisting event, he expressed his disappointment that Modi did not mention the pending high court judge appointments during his speech earlier that day.
Justice Thakur also criticised the Union law minister’s past comments on the stand-off, saying “Ravi Shanker Prasadji, aapki gaanth pakki hogi, magar hamaari bhi gaanth kachchi nahin hai“[If he is so firm about the knots, then so are we].
Competition between the Supreme Court and the Union government is not conducive to the functioning of the country and neither side should feel pressured by the other. Such statements might even aggravate the problem instead of inducing constructive cooperation.
A good administrator follows the principle that he should not concede any demand under pressure, even if it is justified, because if he does so, people will perceive him as weak and as someone who gives in to demands under duress. Such a reputation would only encourage others to try their hand at pressuring the administrator to get what they want.
The way to resolve the differences is to sit coolly in a closed room and discuss the problems and resolve them by reaching consensus. The differences may not be resolved in one sitting and may actually require several sittings – but that is the only way.
I suggest that a closed-door meeting be held – either at the residence of the prime minister, the CJI or anywhere else – and the following persons ought to be present:
- The CJI and his collegium colleagues
- The prime minister, law minister, and some other cabinet ministers
- The attorney general
- Some senior lawyers such as Fali Nariman, K.K. Venugopal, Shanti Bhushan, Soli Sorabji, Harish Salve
- Dushyant Dave, the president of the Supreme Court Bar Association
This is the only way to resolve the issue.
Justice Markandey Katju is a former judge of the Supreme Court.