Past weeks have seen remark on remark by senior echelons of the Modi 2.0 government that can be interpreted aa nothing short of open provocations.
Kiren Rijiju, during the ongoing winter session of the Parliament, said in the Rajya Sabha that a constitutional body like Supreme Court should not be hearing “bail applications and frivolous PILs’’ at a time when pendency of cases is so high.
In what came as a quick and befitting counter to Rijiju’s remark, CJI Chandrachud said while hearing a case, “If we do not act in matters of personal liberty and grant relief then what are we doing here? What is SC doing and is it not a breach under Article 136. SupremeCourt exists to hear to the cry of such petitioners. We burn the midnight oil for such cases and see there is more”. His bench was hearing a bail plea filed by a man convicted of stealing electricity and was sentenced to 18 years in prison (9 offences and 2 years punishment for each, not running concurrently) out of which he had served 7 years. The Supreme Court allowed the appeal and the CJI ordered thus,
“Leave granted. facts of the present case provide another instance, a glaring one at that, indicating a justification for SC to exercise its jurisdiction as a protector of fundamental right to life and personal liberty inherent in every citizen. if the court was not to do so, there would be serious miscarriage of justice for a citizen whose liberty has been abrogated. It is in seemingly small routine matters that issues of moment both in jurisprudential and constitutional terms emerge. Intervention by SC to protect the fundamental rights is based on sound constitutional principles as under 136. right to personal liberty is precious and inalienable liberty and by doing this sc performs a plain constitutional duty. obligation, no more and no less.”
Collegium in the dock again
On pendency of cases, while highlighting that over 5 crore cases are pending in courts across the country, at all levels, Rijiju had also said, “The government has very limited powers to fill vacancies of judges. The government has no power to search for any new name apart from what the (Supreme Court) collegium has recommended. We are giving our full support to reduce pendency of cases. But questions will keep arising on vacancy of judges and appointments till we create a new system for appointments”.
“We only request the chief justices of high courts and the Chief Justice of India (CJI) to expedite the appointments against vacant posts of judges. The recommended names should reflect the diversity of the country in terms of caste, religion and gender. But I feel that somehow things are not happening matching the sentiments of Parliament and the nation,” he added.
Rijiju has overtly criticized the collegium system at public events in the past few months. Speaking at the India Today Conclave on November 5, 2022, he had made some strong remarks against the Collegium system, calling it ‘opaque’ and lacking accountability. He said his government is making the most of the present system till an alternative mechanism is put in place.
On November 25, speaking at Times Now Summit 2022 Rijiju had said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…” Describing the Collegium system as “alien” to the Constitution, he had said, “You tell me under which provision the Collegium system has been prescribed.”
On November 28, Justice SK Kaul while hearing a contempt plea filed by the Advocates Association Bengaluru in 2021 (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary) against the Centre not approving 11 names reiterated by the Supreme Court collegium, seemingly made a reference to Rijiju’s comments and said, “When someone high enough says that..it should not have happened..Mr AG, I have ignored all press reports, but this has come from somebody high enough also.
On the December 9 hearing of the same case, Justice Kaul said, “Just because there are some sections of the society who express a view against the collegium system, it will not cease to the law of the land.”
Vacations in courts
BJP’s Sushil Modi questioned whether the government will discuss with the judiciary about doing away with winter and summer vacations as high courts have 155 holidays and Supreme Court has 141 holidays through the year. Rijiju said that the government has limited powers to intervene in such matters of the judiciary but long vacations are inconvenient for litigants and that it was his duty to convey the sense of the House to the judiciary.
In this backdrop, CJI Chandrachud declared today that the apex court will not have any vacation benches during the winter break which starts from December 17 and the court will re-open on January 2, 2023.
Such a war of words between the executive and the judiciary is unprecedented. The two most important pillars of the democracy refuse to see eye to eye on various issues, the most pertienent being the appointment of judges which requires the rubber stamp of the government. While the judges posts remain vacant in many courts, the government is washing its hands off saying it has no choice apart from the collegium recommendations, while the collegium has time and again reiterated its recommendations. This constant back and forth between the government and the judiciary has become a mark of an unhealthy democracy.