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The Hindu 2016 saw judiciary-govt. hostility (the hindu )

Delay in appointment of judges triggered the bitterness

The year 2016 has been marked by the hostile interface between the judiciary and the government like never before over delay in judicial appointments.

The genesis of this often overt hostility between the two constitutional branches of governance in the world’s largest democracy started towards the fag end of 2015 with the Supreme Court striking down the NDA government’s NJAC laws.

Controversies refused to die down through out the year and reached its zenith with rumours abound that the government is moving to put a spoke in the well-oiled convention of making the seniormost Supreme Court judge, Justice J.S. Khehar, who led the NJAC Constitution Bench, the next Chief Justice of India.

The notification of appointment of Justice Khehar was issued only days before January 3 despite the fact that Chief Justice Thakur had sent his formal proposal recommending Justice Khehar as his successor early in December.

Confident start

The year started on a confident note for the judiciary with Chief Justice Thakur declaring it to be the ‘Year of Appointments’, thus making his intention clear to fill the hundreds of judicial vacancies kept on freeze owing to the NJAC litigation in the Supreme Court during the large part of 2015.

But in April, the world saw an unprecedented sight when an emotional Chief Justice Thakur, during a public function attended by Prime Minister Narendra Modi, accused the government of stalling judicial appointments.

This was the first of the several abrasive and very public encounters the judiciary and the government would have inside and outside the courtroom.

While the Chief Justice accused the government of trying to bring the courts to a “grinding halt,” the government hit back in court that the judiciary itself was to blame for the delay in appointment of high court judges. Attorney-General Mukul Rohatgi told Chief Justice Thakur that High Courts rarely initiated the process for fresh appointments of judges on time and judicial posts remained vacant for years.

When Chief Justice Thakur threatened judicial action against the government for not filling over 440 HC judge vacancies, Law Minister Ravi Shankar Prasad parried by asking why the High Courts have not done anything to fill over 4,900 vacancies in subordinate judiciary all over the country.

On Constitution Day recently, the tensions between the two flared up when the government accused the Supreme Court of failing the nation during the Emergency period. The government blamed the judiciary of indulging in judicial activism. In return, Justice Khehar cautioned the government to not cross the Lakshman Rekha.

The year also saw a number of important judgments and timely interventions, especially when it had compelled the Centre to conduct a floor test in the Uttarakhand Legislative Assembly following the declaration of President’s rule in the State and restored democracy by putting the Congress-led Harish Rawat government back in power.

Its intervention had followed a Constitution Bench decision upholding the independence of the Legislative Speaker by quashing the Arunachal Pradesh Governor’s decision to advance the Assembly hearing. The Governor’s decision had triggered political unrest in the sensitive border State and led to President’s rule. The judgment led to the toppling of the BJP-propped rebel government.

Tax on goods

A Constitution Bench, in a majority 7-2 verdict, also upheld the validity of States to tax goods entering their territories, saying State governments are “well within their rights” to design their fiscal legislation.

The court stood up for the farmers of West Bengal when it held the State’s acquisition of land for Tata’s Nano car factory under the emergency clause as unconstitutional. It observed that the brunt of development should not be borne by the weakest sections of the society.

The interventions made by the court crossed all sections of the society, from banning liquor vends on highways; to ordering people to stand up for the National Anthem at cinema halls to show respect; to whether online jokes about Sikhs was a slur on the community; to questioning the government’s resolve to bring the Kohinoor diamond.

Lodha committee

Sports also saw the impact of judicial intervention when the apex court ruled in favour of millions of cricket lovers in the sub-continent by supporting the Justice R.M. Lodha Committee recommendations to usher in transparency within the BCCI. Review petitions of the Board against the ruling were dismissed.

The court further revived the single-window NEET exam for admissions to undergraduate medical and dental courses. It upheld the right to clean environment by imposing a blanket ban on the sale and manufacture of firecrackers in the National Capital Region. It further levied a green cess on commercial vehicles entering Delhi and luxury diesel vehicles to beat pollution.

Section 377

In a ray of hope for the LGBT community, the Supreme Court agreed to have a back-to-roots and in-depth hearing of their legal struggle against the criminalisation of consensual sexual acts under Section 377 of the Indian Penal Code.

The court took an unprecedented step to test whether practices like nikah halala, triple talaq and polygamy amounted to discrimination against Muslim women. While its intervention led to Mumbai’s Haji Ali dargah authorities to modify their rules and allow women devotees equal access like men, the court is hearing the ban on women of a certain age group from entering the famous Sabarimala shrine in Kerala.

The Supreme Court stood firm by its resolve to ban Jallikattu, questioning the need to “tame” a domestic animal like the bull.

Cauvery issue

The court intervened in the Cauvery river water dispute between Karnataka and Tamil Nadu, ensuring that Karnataka released 2000 cusecs of water to Tamil Nadu. It further dismissed the Centre’s plea that the apex court has no jurisdiction over the dispute.

In a significant ruling, the court stood up for victims of encounters with the police and the security forces by holding that every death in a disturbed area should be thoroughly enquired into by the CID at the instance of the National Human Rights Commission.

The genesis of this often overt hostility started when the SC struck down the Centre’s NJAC laws


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