INDEPENDENCE OF INDIAN JUDICIARY AT STAKE WITH GOVT. BREATHING DOWN ITS NECK

The framers of the Indian constitution were wedded to the concept of separation of powers and wanted the judiciary to be independent of the executive. But within two decades of independence, the higher Indian judiciary had come under unprecedented pressure to conform to the political diktats of the government, then dominated by the awe-inspiring Prime Minister Indira Gandhi.

Indira wanted the Supreme Court to interpret the law and constitution according to her path breaking leftist and populist ideology. She openly sought a “committed judiciary” and appointed judges of her political and ideological hue.

However, being a never-say-die democracy, India put paid to such gross forms of interference by the second half of the 1970s. But the spread of democracy and the increasing competitiveness of Indian politics inexorably led to the politicization of institutions which were previously apolitical.

Politicians increasingly felt the need to control more and more institutions, including the judiciary. The latter kept coming under duress from the government from time to time.

APPOINTMENT BY JUDGES’ COLLEGIUM

The system of appointing judges acquired a political dimension which resulted in candidates pandering to the whims of powerful political lobbies. Since appointments were a delicate matter involving the political interests, there were delays, which, in turn, resulted in the creation of a large number of vacancies in the courts. To protect itself from such challenges, the Supreme Court’s justices banded together to sentence Karnan to six months jail in 2017

The inadequacies of the judicial structure led to corruption which in turn led to an erosion of faith in the judicial system.

To protect the independence of the judiciary from political forces and the Executive, the Supreme Court, in 1993, directed that judges be chosen by a “collegium” of judges of the High Courts (in the first instance), and then a collegium of judges of the Supreme Court in the final stage. The government was required to accept the recommendations and make the appointments.

The collegiate system appeared to work well until a High Court judge, C.s.karnan, charged members of the collegium of secrecy, corruption, and caste biases. An intemperate person, Karnan brazenly sentenced to imprisonment all the five members of a Supreme Court bench.

To protect itself from such challenges, the Supreme Court’s justices banded together to sentence Karnan to six months jail in 2017. But many wondered if it was right to wholly condemn Karnan because there was a felt need to have a mechanism to control the goings on the judiciary which were not always wholesome. Left out of appointments since 1993, the government and the major political parties had also started targeting the collegiate system.

NJAC AND MOP

The ruling Bharatiya Janata Party and the Congress combined to establish, by law, a National Judicial Appointments Commission (NJAC) to control appointments. Threatened, the Supreme Court promptly annulled the NJAC saying it violated the constitutional principle of separation of powers.

After the National Judicial Appointments Commission was rejected in 2015, the BJP government proposed the adoption of a Memorandum of Procedure (MOP) to appoint judges. But there was a snag there. The MOP had a clause saying that the government could reject a candidate on grounds of “national security”. It further said that it would inform only the Chief Justice of the exact nature of the national security threat.

The collegium rejected such selectivity. Stumped, the government came down a notch and said that it was prepared to negotiate the MOP.

DELAYING TACTICS

The government also began to use its power to delay acceptance of the collegium’s recommendations and to send back recommendations for reconsideration.

The most recent example of the exercise of such power is the way the BJP government has treated the collegium’s recommendation to appoint K.m.joseph (Chief Justice of the Uttarakhand High Court) as a Supreme Court judge.

The BJP government did not want to elevate Joseph because in 2016, he had disallowed the sacking of the Congress government and the imposition of President’s Rule in Uttarakhand.

Peeved by this snub, the BJP government sat over the collegium’s recommendation to appoint Justice Joseph for months. It then sent it back for reconsideration.

As grounds for reconsideration, it said that Joseph is not senior enough; that his State of Kerala is over represented; and that there is no representation of Dalits or depressed castes in the bench.

BENCH AND COLLEGIUM DIVIDED

But can the Supreme Court and the collegium pick up the gauntlet and resist the government?

The current Supreme Court bench and the collegium are divided houses. Four senior judges are ranged against Chief Justice Dipak Misra on various grounds. Senior Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph had only recently publicly challenged Misra’s arbitrary style of functioning and accused him of being a hand maiden of the government. But Misra has argued that he has the power to do what he has been doing.

Given the disunity it is feared that the collegium may not be in a position to over-ride the government, even though the government will have to go by its recommendation if it reiterates the recommendation.

Predictably, Chief Justice Misra held that the government is entitled to seek reconsideration of a recommendation by the collegium. Misra has also made it clear that he will not opt for a “judicial response” to the government’s move, because, in his view, the issue is not “judicial” but “administrative”.

The BJP government did not want to elevate Joseph because in 2016, he had disallowed the sacking of the Congress government and the imposition of President’s Rule in Uttarakhand

He brushed aside Justice Chelameswar’s contention that the government’s sitting over the collegium’s recommendations has become the new norm, and acting on its proposals is an exception.

The four disgruntled judges had urged Chief Justice Misra to hold a full court meeting on the issue. But Misra did not act until the government sent a letter urging the collegium to reconsider its recommendation relating to Justice K.m.joseph. The collegium will now meet on Wednesday.

DEMAND TO RESIST INTERFERENCE

The media and the legal fraternity have warned that failure to resist the government in the case of Justice Joseph will only encourage it to keep ignoring the collegium’s recommendations. It may ignore Justice Ranjan Gogoi’s claim to be Chief Justice when Misra retires in October.

Former judges, lawyers and the media have condemned the government’s move and appealed to the Supreme Court to sink its internal differences and assert its independence from the executive.

“The government’s action strikes at the very heart of the independence of the judiciary”, said former Chief Justice of India R.M. Lodha.

Former Chief Justice of the Delhi High Court A. P. Shah said: “Bit by bit, the primacy of the collegium is being conceded.”

CAPITULATION FEARED

But given the alleged closeness of Chief Justice Misra to the government, the legal fraternity and the media wonder if the Supreme Court under his tutelage would resist the government.

When the opposition Congress party recently submitted a Motion of Impeachment against Misra in the Upper House of Parliament listing several grave charges against him, the Chairman Venkaiah Naidu of the BJP refused to admit the motion. Again, only recently, Justice Misra had dismissed a Public Interest Petition seeking re-investigation of the death of Judge B.h.loya who was handling a murder case which allegedly involved the ruling BJP’S President, Amit Shah.