New Delhi, Aug 16 The unprecedented executive-judiciary logjam has sparked an emotive and highly divisive debate about the future of the courts, but most lawyers are unanimous that both sides must get on with business rather than spar at the cost of litigants.
Lawyers are, however, divided on who to blame for the deadlock that has arisen over the Memorandum of Procedure (MoP) -- which lays out the exact procedures to be adopted in the appointment of a judge -- but agree that appointments can't be held up as arrears pile up.
While former Delhi High Court judge Justice Rupinder Singh Sodhi says the standoff is because of an "ego problem" on both sides, activist-lawyer Prashant Bhushan feels that "it is clear that the government is trying to stall the appointments because they want veto in the MoP on the appointment of judges."
Be it ego or the government's urge to have a decisive say in the appointment of judges -- which it first tried to achieve through the National Judicial Appointments Commission (NJAC) -- the unsuspecting sufferer is the poor litigant whose right to speedy justice under Article 21 of the Constitution is being denied.
The gravity of the problem faced by litigants can be gauged from the fact that even if all sanctioned positions at the subordinate courts, the 24 high courts and the Supreme Court are filled, there would still be just 18 judges per million population (going by the 2011 Census).
Of the sanctioned strength of 20,502 judges in the subordinate judiciary, 4,432 are lying vacant. Similarly, the high courts are functioning at about 50 per cent of their sanctioned strength -- of the 1,079 positions, 477 are vacant.
There are 2,70,19,955 cases before the subordinate judiciary and 38,70,373 cases before the high courts as on December 31, 2015.
The Law Commission in its 120th report in 1987 had favoured 50 judges for one million population, but 27 years later, in 2014, it found that the calculation had no scientific logic as the number of cases was rising.
Whichever way one may look, it is nobody's case that the existing 18 judges for one million population is a happy situation for the country's judiciary.
So who is to blame for the stand-off between the government and the five seniormost judges of the Supreme Court who constitute the collegium?
Justice Sodhi, who is a practising senior advocate, says that after striking down "Parliament's opinion" (ie, junking the NJAC) it was the Supreme Court which had by its judgement said that the appointment of judges would be made by way of the MoP.
"Until there was an MoP and the procedure for making appointments is not available, no appointment can be done," he said.
However, senior counsel Sanjay Hegde feels that an impression is gaining ground that "government wants to frustrate the apex court judgement in NJAC case".
"It (the government) is seeking to enter through the back door and engaging in an unnecessary war of attrition with the judiciary," Hedge says.
"By not making appointment in time," Hegde adds, "it is sending a message that it is either the government's way or the highway."
Constitutional expert and former Secretary General of the Lok Sabha, Subhash C. Kashyap, says: "The role, jurisdiction and functions of the three organs of the State -- judiciary, executive and legislature -- are clearly defined and delimited under the Constitution and if they stay within their defined jurisdiction then no problem would normally arise."
The problem arises only when any one organ tries to exceed its defined limit, he says.
In the matter of appointment of judges, Kashyap says: "I think the Supreme Court's stand amounts to exceeding its jurisdiction because by their judgement they declared NJAC unconstitutional. Anything that is declared unconstitutional, the point of reference is the Constitution and which provision of the Constitution has been violated?"
"I think the Supreme Court had exceeded its jurisdiction," adds Kashyap, pointing to the genesis of the present logjam.
Suspecting the government's intent, however, Bhushan says: "To push their own people in the judiciary, they want to bargain with the collegium. In any case, it is a reprehensible tactic to defy the law declared by the Supreme Court."
Bhushan, who likes to see things in black and white, advocates a criteria-based appointment of judges -- a point of view he had argued even during the hearing of the challenge to the constitutional validity of Constitution's 99th amendment paving way for the NJAC and the NJAC Act.
"There needs to be a criterion for the selection of judges and a full-time committee of people to evaluate the proposed candidates on that criterion," says Bhushan.