Today's Editorial

10 May 2018

Supreme cauldron

Source: By Manini Chatterjee: The Telegraph

On April 26, after more than three months of sitting on the two names recommended by the Supreme Court collegium for elevation to the highest court of the land, the Modi government asked it to "reconsider" the name of the judge, K. M. Joseph. It, however, cleared the appointment of senior advocate, Indu Malhotra, to the bench. The government's decision was sharply criticized by Opposition parties as well as legal luminaries.

But Union law minister, Ravi Shankar Prasad, chose to train his guns only on the Congress. "Why was the Emergency imposed by the Congress government? Because of the Allahabad High Court had annulled the election of Mrs Indira Gandhi. Congress party should stop talking about independence of judiciary.

Your record is known …"What the articulate and ever- indignant law minister seemed to forget is that more than 40 years have passed since the Emergency. Although the Emergency declared by Indira Gandhi in June 1975 lasted less than two years, it has been widely reviled as an aberration in India's post- Independence history that tarnished all the pillars of India's democratic edifice, especially its judiciary.

But a happy consequence of the experience of the Emergency is that Indians began to appreciate the values of democracy a lot more. This was reflected in a much more robust media, an efflorescence of civil society movements and the formation of new political parties and the evolution of a strongly independent judiciary in the post- Emergency decades.

The last four years have witnessed a sharp and palpable reversal of this deepening democratic spirit. Under the combined onslaught of the Rashtriya Swayamsevak Sangh's monolithic Hindutva offensive and a strong Central government's hegemonic instincts, many an institution — universities, school boards, media houses, non- governmental organizations, banks — is under threat today. But perhaps the gravest victim of governmental overreach is the judiciary.

It is a measure of the turmoil currently facing the judiciary that the word" unprecedented" has been frequently used in the past few months to describe developments concerning the Supreme Court. Judges of the apex court are usually distant figures who speak to us only through their judgments. But of late, they are in the news for other reasons. On January 12, the first of the "unprecedented" developments took place when the four senior- most judges of the Supreme Court — J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph — held a press conference and raised questions about the style of administration of and the allocation of cases to different benches by the Chief Justice of India, Dipak Misra. The four judges and the CJI comprise the collegium that selects judges to the Supreme Court and the high courts.

At that extraordinary press conference, the judges said they had been "compelled" to speak out because the CJI did not take steps to redress the grievances they had aired two months ago. In a dire warning, they said, "Unless the institution of Supreme Court is preserved, democracy won't survive in the country.”On the face of it, the press conference seemed to indicate an intra- judiciary battle. But a closer reading of the letter written by the four judges to the CJI, and subsequent letters to the CJI, reveals that the real concern is the growing threats to the independence of the judiciary from an aggressive executive. The criticism of the CJI seems to stem from the view that he is not taking these threats seriously enough or combating them more decisively.

In his letter to the CJI dated March 21, Chelameswar, for instance, notes that, "We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive's incremental encroachment. The Executive is always impatient, and brooks no disobedience even of the judiciary if it can". In the letter, Chelameswar strongly criticizes the executive for directly contacting the Karnataka High Court to reassess a recommendation made by the collegium of the Supreme Court. He goes on to sarcastically note: "We only have to look forward to the time, which may not be far- off if not already here, when the executive directly communicates with the High Court’s about the pending cases and what orders to be passed.

We can be happy that much of our burden is taken away". But he then gravely adds, "We cannot deny Robert H. Jackson's assertion in United States v Wunderlich that men are more often bribed by their loyalties and ambitions than by money. Let us also not forget that the bonhomie between the Judiciary and the Government in any State sounds the death knell to Democracy. We both are mutual watchdogs, so to say, not mutual admirers and much less constitutional cohorts. "The Karnataka matter, he suggests, should be discussed by the full court.

A few days later, on April 9, Kurian Joseph too wrote a letter to the CJI, asking for a bench of seven or more senior- most judges to consider the case of the government sitting tight on the two names recommended by the collegium for appointment to the Supreme Court. The delay on the government's part, he noted, "sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive, lest they should suffer. Is this not a threat to the independence of the judiciary? "His fears were not unfounded.

It is common knowledge in legal circles that K. M. Joseph, currently chief justice of Uttarakhand, had earned the wrath of the government by quashing President's rule in the state two years ago. The government refused a recommendation by the Supreme Court to transfer him to Andhra Pradesh High Court earlier and has now sent back his nomination for elevation to the apex court by citing grounds that are widely regarded as specious. This is only the second instance of a recommendation by the collegium being disregarded by the executive.

The first one also took place under the Modi government. An earlier collegium headed by the then CJI, R. M. Lodha, had recommended the name of former solicitor- general, Gopal Subramanium, for elevation as a judge of the Supreme Court in 2014, along with three other names. After the Modi government took over, it cleared three names but held back Subramanium's. Following selective leaks in the media against his credentials, Subramanium decided to withdraw consent to his candidature. The real reason for the government's antipathy towards Subramanium was because of his demand for the prosecution of Amit Shah in the Sohrabuddin fake encounter case.

Another instance of the government’s attempts to tame the judiciary is its dogged refusal to clear the collegiums final draft of the memorandum of procedure — the manual that guides the appointment process and transfer of judges to the Supreme Court and the high courts — that was prepared as far back as October 2015. But perhaps the most pernicious form of executive interference is to play on the vulnerabilities of individual judges to create unprecedented discord within the highest court which is now spilling out into the public domain.

The equally unprecedented move by seven Opposition parties to give a notice of impeachment against CJI Dipak Misra may have been summarily dismissed by the Rajya Sabha chairman, M. Venkaiah Naidu, without — again unprecedented — waiting for an inquiry committee to look into the charges made. But rather than putting a lid on the controversy, the decision has further fuelled it. For the Supreme Court resembles a cauldron, the fire beneath it stoked by an aggressive executive that has little tolerance for dissent.

The four judges in the collegium, individually and collectively, have repeatedly requested the CJI to convene a meeting of the full court to discuss the grave issues threatening the independence and credibility of the judiciaryThe government's snub to the apex court on the issue of K. M. Joseph provides the perfect opportunity to the CJI to call such a meeting and restore the collegial functioning and collective decision- making that alone can resist the grasping tentacles of a rampaging executive.



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