| News Details |
| “Abnormal “ In The Executive – Judiciary Paradigm | | 
By B L Saraf
While explaining merits of the demonetization of the high denomination currency notes , Finance Minister – Arun Jaitely inserted new “ normal “ in the politico – economic lexicon of the country . He said , henceforth ,adherence to the principle of probity and efficiency will define new “ normal “ in the matters of governance . This new “ normal ‘ will , if we believe FM ,replace the earlier one which‘ characterized corruption and inefficiency in the executive governance of India ; acquiesced by many , either by design or default .’
There is a golden principle in the grammar of vocabulary and the science of dictionary that when a new word finds place, therein , the opposite of it , along with all its antonymic connotations , simultaneously , gains the entry . Opposite of ‘normal ‘is the “abnormal ‘. We fear ‘ the opposite’ is gaining the currency in the Executive - Judiciary relations : which , unfortunately , seem to have gone frosty .
As of today, we do not have any hint that the relations between two important organs of the state will thaw in the near future . Available trends indicate the opposite. Tension between Executive and the Judiciary is flaring up day by day. In a function held to celebrate the making of our Constitution, CJI Justice T .S Thakur referred to the shortage of Judges in various high courts and the tribunals, and made a plea for the governmental intervention in this regard. Union Law Minister, Ravi Shankar Prasad , who was also present on the occasion, struck a different cord and said that central government has made 120 appointments this year. Suddenly , both the sides found a virtue in the “ Lakashman Rekha “ , and , virtually , accused each other of violating it . Law Minister referred to the Emergency of 1975 and lamented that in this period the Apex Court ‘ failed the nation .’
The dark period of Emergency is the past . We are living in the present, with today’s issues confronting us. It will serve no body to recall the past only to score a point . Unfortunate it may be , a confrontational stance is visible . When the justice delivery system is on the vergeof collapse – for variety of reasons, the developing scenario doesn’t portend well. One may say so , relations between the judiciary and the executive were never ideal , in the past . Apex Court’s decision to annul the law of Judicial appointments Commission , replacing the collegium system of appointment of judges to the high courts, has , probably , aggravated the situation .
While as the supremacy of the judiciary in making appointment of the judges is paramount and must be respected ; Central governments say – howsoever little it may be - has to be concede in the exercise . After all , it the elected Central government that is accountable to the electorate for its successes and failures – including the one on the judicial front . Then , the state has the wherewithal to access the antecedents of a candidate that may not make him / her suitable for the job . The central government as also the Apex judiciary will have to introspect a bit . There’s an impression that the judiciary has overstepped in larger areas , which may or may not be good . There is need to dispel the impression that judiciary is, only , for the high and mighty . Government must stop acting in arbitrary manner .
Formalization of Memorandum of Procedure ( MOP ) , meant for laying down parameters for consideration of a prospective candidate for the Judge’s post has become a bone of contention between the parties - one expressing lack of faith in the other .Appointment of Judges , both after the collegium system was brought in the picture or prior to that , has attracted the criticism . So neither can profess a holier than thou claim. Under these circumstances , both sides will have reflect coolly , in a non- egotistical atmosphere and act fast in the right spirit
We believe both the important organs of the state are well-intentioned to have required number judges to steer the justice delivery system . Along with the quantity, quality must be given the due . While there is no denying that paucity of the judges , at different levels of the judicial hierarchy , does affect efficiency of the justice delivery system , it is equally true that quality of the judges , at these levels , is also a big factor in clearance or accumulation of the arrears . We are reminded of an observation made , in this context , by a former C JI that it is better to leave a position vacant than to fill it with an undeserving person .
PM Narrandra Modi may have to intervene , personally. A robust justice delivery system in the country is a sine- quo – non for a good and reformed economy . PM must recall what eminent lawyer , Falli S Narriman has to say about his colleagues – the high – profile lawyers with political inclinations : and , for a while , keep off his Law Minister and Finance Minister ( High profile lawyers ) from the business . He writes ,in his book Before Memory Fades - Hay House p383 ,
“Swarn Singh - India’s foreign minister in Indira Gandhi’s government in 1975 – told me about the exercise undertaken by Indira Gandhi , during the days of internal emergency in 1975 , to clip the wings of Article 226 . She had constituted a Constitution Committee with Swarn Singh as the chairman which included three prominent practicing lawyers . Whileas the three eminent lawyers fervently wanted to scrap Article 226 it was Swarn Singh - a non-practicing lawyer - who set his face against abolition of Article 226 . Moral of this story is that we should avoid relying on high – profile lawyers ( with political inclinations ) because with their argumentative skills , they are able to rationalize all forms of tyranny .”
Ever since he has taken over as the head of Indian judiciary , Justice T S Thakur has been trying hard to put the justice delivery system on the fast track . Sometimes beseeching, at times threatening to invoke the judicial powers , he is always seen making an endeavor . But little seems to have worked for him . Indeed , it will be tragic if a well-meaning and well-intentioned head of the Indian Judiciary has to bid farewell to the great institution as an ‘unsatisfied ‘ and ‘sad’ person - if not a disillusioned one .
(The author is a Former Principal District & Sessions Judge.Feedback- [email protected] )
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