Judicial independence is now a myth

The Supreme Court has surrendered to the Narendra Modi government in deciding who will join its hallowed ranks with 100 lawyers forced to write a letter demanding that Uttarakhand chief justice K M Joseph be sworn-in with Indu Malhotra as a judge. They did this because Chief Justice of India Dipak Misra declared there was “nothing wrong” for the executive to veto the elevation of a judge approved by India’s seniormost judges.

And by capitulating to Modi, CJI Misra has denigrated his office by proving that it can never be the “sole repository of Constitutional trust” to assign cases to benches of his choice as declared by Justice D Y Chandrachud. The CJI should have stood up for an excellent chief justice like K M Joseph whose only fault was that he embarrassed the Narendra Modi government by striking down President’s rule in Uttarakhand. The collegium reiterated Joseph is undoubtedly the seniormost and most deserving among all the 24 chief justices in India for elevation as a Supreme Court judge.

By his actions and words, CJI

Misra has vin- dicated the stance of Justice Jasti Chelameswar, who declared on January 12 that “democracy was in danger” followed by letters on April 25 from Justices Ranjan Gogoi and Madan Lokur to the CJI for a full-court discussion on the “future of the Supreme Court” after the Vice President of India M Venkaiah Naidu allegedly rejected the impeachment motion of CJI Misra by giving undue weightage to a dissenting judgment.

These 100 lawyers of the Supreme Court Bar Association have usurped the role of CJI Misra who was indirectly accused by Justice Chelameswar of assigning matters to certain judges of his choice, to favour the executive. This was one of the charges in the Congress’ impeachment motion. Significantly, the late Arunachal Pradesh chief minister Kalikho Pul is alleged to have questioned the integrity of both CJI Dipak Misra and his predecessor, J Khehar in his suicide note. CJI Misra played an allegedly dubious role in the medical colleges scam where a former Odisha high court judge was a prime accused.

CJI Misra has narrowly escaped being impeached but acquired the dubious distinction of being the first CJI in the Supreme Court’s history to face that ignominy. The CJI has proved that he is incapable of standing up to the executive which has sent a message to the judiciary to toe its line or risk being superceded like chief justice K M Joseph.

And so, the executive has publicly vindicated the fears of the four rebel judges, Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph, who form the collegium that judicial independence is now a myth. Indu Malhotra is the seventh woman judge of the Supreme Court but she will not risk joining the ranks of the rebel judges.

So, finally, it is out in the open. Despite the apex court striking down the National Judicial Appointments Commission Act, 2015 and the 99th Constitutional amendment, the Narendra Modi government, which has got an absolute majority in the Lok Sabha, has declared that it has the final word on who will become a Supreme Court judge. All the rest is academic debate.

The writer holds a PhD in law and is a journalist-cum-lawyer

of the Bombay High Court.