For Healthy Democracy trust between government and Judiciary is Must

Ilin Saraswat

New Delhi. The way the Union Government keeps sitting on the names of recommendations made by Collegium is not a healthy sign of trust between Government and Judiciary.

The manner of retirement of Acting Chief Justice of the Madras High Court Justice T Raja has raised serious questions over the intentions of the Union Government and the Ministry of Law and Justice, as it was a couple of months back when his name was recommended for transfer to the High Court of Rajasthan with immediate effect, by the Supreme Court Collegium headed by Chief Justice of India Dr Dhananjaya Chandrachud. However, the Union Government did not notify his transfer orders and appointment for High Court of Rajasthan, and ultimately he retired as Acting Chief Justice of the Madras High Court.
In the middle of this, the abrupt removal of Union Law Minister Kiren Rijiju has created a strange kind of situation for the Union Government as many are of the opinion that Rijiju was removed because of his continuous diatribe on Supreme Court Judges and the Collegium system. This kind of pocket veto on the names of the judges recommended by the Supreme Court Collegium for the elevation as high court judges, as well as for the appointments and transfer as judges to various high courts and the Supreme Court, is not a healthy and bona fide act of the Government and that makes the Judiciary and the Collegium quite upset and bit prejudiced towards the intentions of Union Government which really is not a good sign for the smooth running of democracy in India. It has been witnessed in the last many years that the recommendations of the Collegium are being avoided or blocked in the middle, to get notified by the Union Government as long as possible, and returned to the Collegium after a prolonged delay.

The Union Government and the Judiciary both are the wheels of the same chariot named the Democratic Republic of India, and are equally important for running the beautiful democratic structure of our nation in a smooth and healthy manner. However, the way the Union Government keeps sitting on the names of recommendations made by Collegium is not a healthy sign of trust between Government and Judiciary. In past, we have seen that almost every Chief Justice of India shows serious concern over this issue every time the Collegium made the recommendations, and appointments and appointment notifications being delayed by the Central Government time and again. We have seen in year 2016 when the then Chief Justice of India, Justice TS Thakur, in deep emotions shed tears on a public stage while speaking about the pain of judges on overburdening of the cases and shortage of judges in the courts, and the continuous increasing vacancies in different high courts and the Supreme Court as well.

Recently, retired Supreme Court judge Justice RF Nariman, during a lecture, recommended that the Supreme Court should take up a suo moto case for names of the judges recommended for appointment or transfer by the Collegium, which should be called as Fifth Judges Case, and have a time-bound deadline of 30 days for the Union Government to respond on the recommendations made by the Collegium for the appointment or transfer of the Judges. Apart from Justice Nariman, many other legal luminaries too opined that the SC Collegium should declared a time period in which the Union Government should be bound to respond and appoint the Judge(s) with the appointment notification(s); and if the Union Government fails to act upon such recommendation(s) within the settled stipulated time period then the Collegium should itself notify the appointment of the said Judge(s) recommended by it, taking the power of appointment and transfer of Judges from the hands of the Union Government to itself. This kind of discussion is often overheard in the Supreme Court cafeterias and libraries, where senior advocates along with other members of the Supreme Court Bar Association discuss the issues of the day. In recent times we have seen in many cases where despite the recommendations made by the Collegium the Union Government had stalled the transfers and the appointments of many judges, such as the cases of elevation of Justice KM Joseph to the SC, senior advocate Saurabh Kirpal’s elevation as a high court judge, and the transfer cases of Justice Akil Qureshi, Justice M Muralidhar and the recent one with Justice T Raja.

However, there were some strict objections over some recommended names for elevation to high courts and the Supreme Court, but the Collegium ignored them and reiterated those names again.

In a recent case of elevation in the Madras High Court, a petition was filed in the SC to stop the oath of an advocate recommended for elevation as a judge of the high court because of objections to the elevated judge’s political ideology by Bar members, politicians, journalists etc. The Supreme Court rightly dismissed that petition while observing that one’s political ideology isn’t a criteria to decide the merit and talent of a judge.

I completely agree with this observation of the apex court, and one should not be prejudiced over such issues. I have seen best of judges in the Supreme Court with a particular political ideology, deciding cases with complete neutrality and great judicial mind. So, for me this petition was completely irrelevant.

It is high time that the Supreme Court Collegium and the Union Government build a strong trust between each other for the sake of the welfare of the litigant, as already we have around four to five crore pending cases in the courts of India. More courts and more elevations need to be made swiftly, so the common man’s trust in our democratic system is strengthened, and litigations can be disposed of without delay.

Ilin Saraswat is an advocate at the Supreme Court of India and goes by @IamAttorneyILIN on Twitter