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Judiciary Mustn’t Shy Away From Confrontation With Govt; That’s Its Job

The Supreme Court is itself responsible for allowing things to come to this pass, appearing so helpless in the face of a government which has repeatedly dragged its feet in implementing decisions or recommendations of the Supreme Court.

Like journalism, the job of the courts is to speak truth to power. (PTI Photo)

Hearing a petition challenging the Constitutionality of the Tribunals Reforms Act, 2021, a bench of the Supreme Court headed by Chief Justice of India NV Ramana lamented that the Union government was dragging its feet over making appointments to various quasi-judicial tribunals.

“There is no respect for the judgments of this court. You are testing our patience! How many persons were appointed? You said some persons were appointed?” the bench asked Solicitor General Tushar Mehta, appearing for the Union of India.

“They (Union government) are bent upon not respecting the judgment of the court. This much is very clear…” the bench observed.

ALSO READ: Tribunals Are Collapsing, SC Raps Centre Over Huge Vacancies In Judicial Bodies

But truth be told, the Supreme Court is itself responsible for allowing things to come to this pass, appearing so helpless in the face of a government which has repeatedly dragged its feet in implementing decisions or recommendations of the Supreme Court.

After all, at a hearing in the same case a month ago, the bench headed by the CJI had expressed a similar lament, asking the same law officer – Solicitor General Tushar Mehta – if the government’s intention was to close down all tribunals.

When the CJI-headed bench tells the Union government that it is “not interested in or inviting any confrontation (with the govt)”, the question that arises is: Why not?

Like journalism, the job of the courts is to speak truth to power. And if doing so means being confrontationist, so be it. Sadly, both pillars – one (judiciary) granted that hallowed status by the Constitution and the other (media) put on that pedestal due to the nature of duty it is expected to perform – seem to have forgotten that, at least to a large extent, in recent times.

Having covered the courts, I am reminded of an incident during the hearing of a minor matter – non-payment of some salary dues to a government employee by the Punjab government, then headed by Parkash Singh Badal – in late 2001.

The bench – headed by Justice GS Singhvi (yes, the same judge who later came to the Supreme Court and whose bench passed the landmark judgment cancelling 122 2G spectrum licences over corruption charges) – summoned the Advocate General HS Mattewal and asked him why, despite clear-cut instructions, the teacher’s dues had not been released.

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When the AG tried to cite sluggish bureaucracy as the reason for the delay, this is what the bench told him: “Mr Mattewal, you kindly tell your Chief Minister and the Chief Secretary that they have time till 3 pm to do the needful. In case it is not done, let both of them be present in court at 3.30 pm to explain why the government isn’t doing what the court has ordered it to do.”

This, incidentally, isn’t even the most interesting part of the story. Badal, it was clarified, wasn’t even the minister incharge of the department to which the employee belonged. But such was the aura of the court that within half an hour, the necessary orders were passed and copy faxed – this was much before the WhatsApp era and when mobile phones didn’t have internet – to the office of AG.

Am I suggesting the CJI-headed bench summon the Prime Minister or the Union Finance Minister to court and seek answers? No, absolutely not. But the court can do better – it can fix a short deadline within which the vacant posts have to be filled, failing which the officer concerned would be present in court to explain the lapse.

Consider this: as per data made public in court by none other than CJI Ramana himself at the last hearing, there were 240 posts of Chairperson, Presidents, Presiding Officers and Members – Judicial as well as Technical – vacant in the 15 Central government quasi-judicial bodies and tribunals.

As of August 5, 2021, 15 Debt Recovery Tribunals were headless, that is without full-time Presiding Officers, while important tribunals like National Company Law Tribunal and the National Company Law Appellate Tribunal and the Appellate Tribunal for Forfeited Property were also without Chairperson/Presiding Officers.

The National Company Law Tribunal also has a whopping 33 vacant posts of members – 19 Judicial Members and 14 Technical Members even though the Selection Committee had recommended names for filling 21 posts almost 15 months back on May 27, 2020.

Considering how much noise the current government makes over standing up for the armed forces, one would have expected it to work overtime to fill vacancies in the Armed Forces Tribunal (AFT), which decides disputes pertaining to the services. In reality, even though the Selection Committee on November 6 2020, recommended 12 names for eight vacancies in the AFT, the number of vacancies has mounted to 23.

The National Green Tribunal (NGT) has 30 vacancies while the Income Tax Appellate Tribunal (ITAT) has 52 posts of Members vacant even though the Selection Committee had recommended 35 names way back in October 2019.

The Central Administrative Tribunal (CAT), which deals with job-related legal matters of government employees, is currently functioning with a whopping 32 vacant posts of members, while the Railway Claim Tribunal is functioning with 25 vacant posts of members.

While appointments to these tribunals in important and vacancies must be filled quickly, the Supreme Court would do well not to forget that its job doesn’t stop at mere filling of the vacant posts.

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Its real job is to decide if the Tribunals Reforms Act, 2021, as alleged, fails the test of Constitutionality. That is something it must decide with the same alacrity that it expects the government to fill vacancies in tribunals or process names for judgeship recommended by the Supreme Court.

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