NDA@3: Under Modi, government ties with judiciary ebb and flow

NEW DELHI: Within three months of getting a massive mandate in the May 2014 elections , the Narendra Modi government introduced the National Judicial Appointments Commission (NJAC) Bill to scrap the much-criticised collegium system for the selection of judges to the high courts and the Supreme Court. Parliament passed it unanimously.

More than 20 states ratified it.

The product of rare unanimity in the polity, NJAC was struck down as unconstitutional by the Supreme Court in October 2015. A whiff of executive presence through the law minister in the committee to select judges, the SC said, posed a grave danger to judicial independence.

In December 2015, the SC acknowledged heavy criticism of opaqueness and arbitrariness in the collegium system and handed the Centre an impeding device by asking it to frame a new memorandum of procedure (MoP) to finetune the one that was two decades old.

Till January 2015, cordiality in the relation between the government and the

judiciary

was evident from the then CJI H L Dattu’s lavish praise on Modi.

He had described Modi as a “good leader, a good human being and a man with foresight”. He had also said: “The government has not said no to any proposal given by me. Till date, their response to demands of judiciary has been very good.”

The stinging blow that was striking down the NJAC Act, hyped by the government as a revolutionary step to make judges’ appointments transparent, continues to hurt the Modi government. Despite this, the Modi government created a record by appointing 126 HC judges in 2016.

But, with vacancies crossing the 40% mark in HCs, the judiciary kept accusing the executive of stalling the collegium’s recommendations.

In April 2016, the then CJI T S Thakur threw a tearful barb at the government at a public meeting in the presence of PM Modi, accusing it of stalling the appointments.

Heading a bench in the SC, the then CJI Thakur took up the matter on the judicial side and berated the executive for not listening to the cries of justice of those languishing in jail as their cases were not being taken up due to the lack of judges. The Centre stood its ground, telling the court that the SC itself had asked for the finalisation of an MoP for a more transparent system on appointment of judges. The judiciary has since finalised the MoP , but the government is yet to sign and seal it. If the NJAC was a clash on constitutional principles, the NDA government suffered two quick political reversals in 2016 as the SC annulled President’s Rule in Arunachal Pradesh and Uttarakhand by reviving the dismissed Congress-led governments.

The SC heaped discomfort on the Modi government by undertaking detailed scrutiny of two of its pet decisions — demonetisation and Aadhaar. Both the cases are still pending.

A lot is at stake for the government in these two policy decisions, one linked to unearthing black money and the other to make transparent almost all transactions. What came as the last straw in the uneasy relationship was the SC’s steadfast refusal to review its mid-2016 decision making it mandatory to register an FIR against armed forces personnel in each encounter death, even if it happened in ‘disturbed’ areas where AFSPA is imposed.

The SC refused a relook at the judgment despite the Centre expressing apprehension that a war-like situation prevailed in militancy-hit areas, and subjecting the armed forces to FIRs and prosecution would make it difficult for them to protect the country. But, the seemingly uneasy three-year relation had some silver-linings. The SC and the Centre were on the same page when it came to scrutinising the accounts of NGOs that receive government funds. They were also one on the constitutional validity of criminal defamation provision (section 499/500) of IPC. What came as a big relief for the Modi government was the SC’s decision to dismiss a PIL seeking probe into a corporate diary recovered by income tax officials noting alleged bribes paid to political leaders, including the former

Gujarat

chief minister.