By Amritananda Chakravorty
Over the last few years, the issue of independence of judiciary in India has been in constant public domain and for good reasons, particularly after the landmark press conference of the four senior-most judges on 12th January, 2018, who decried the executive interference in judiciary. Ironically, one of the judges in the four judges’ press conference was the current Chief Justice of India, Ranjan Gogoi, under whose watch, the edifice of the independent and impartial judiciary has almost crumbled. Before I get into the recent developments, let us first understand what is the meaning of independence of judiciary.
At a basic level, judicial independence means that a judge should be free from any pressure from the legislature/executive or any other person/body in deciding a particular case. At a macro level, it means separation of powers, i.e., legislature, executive and judiciary are independent of each other, and act as checks and balances of each other. Independence of judiciary is critical in a country like India, since the High Courts and the Supreme Court have the power of judicial review, i.e., the Courts can strike down legislations passed by the Parliament and State Legislatures on the grounds of violation of fundamental rights and legislative incompetence.
Independence of judiciary does not mean that the judicial powers are absolute or can be exercised arbitrarily, or judges are without any boundation, but they are totally subject to the Constitution, and constitutional limitations. In fact, independence of judiciary is nothing but judicial integrity and accountability. Therefore, higher judiciaries like the Supreme Court and the High Courts are called ‘institutions of integrity’, i.e., their public legitimacy rests on their institutional integrity. In democratic societies, legitimacy of public institutions rests in the trust that is placed on them. An integral part of building public legitimacy is to have a fair and impartial system of judicial appointments, which is under attack in the last few years.
Article 124 and Article 217 of the Constitution govern the appointment of judges to Supreme Court and the High Courts, which provide that judges would be appointed by the President of India, after consultation with the Chief Justice of India, or the Chief Justice of the High Courts respectively. A bare perusal of the constituent assembly debates would reveal that the Constitution makers were alive to the issue of complexity of judicial appointments, and how to provide for the most suitable model for India. In fact, Dr. Ambedkar himself noted that “there can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. …It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the making of appointments. It does not also import the influence of the Legislature.”
From the beginning, the issue of judicial appointments has been a tug of war between the Executive and the Judiciary, which reached its peak during the emergency in 1975, when a junior judge was made the Chief Justice of India, Justice A.N. Ray, by superseding three senior most judges in 1973. The differences between two organs of the State then came to a head in S.P. Gupta v. Union of India (1982), when the Supreme Court upheld the primacy of the Executive in appointment and transfer of judges on the basis that consultation was a mere suggestion not concurrence and was not binding on the president. The decision in S.P. Gupta was then overturned in Supreme Court Advocates on Record Association v. Union of India (1993), popularly known as ‘Second Judges’ Case’, wherein the Apex Court, while overruling S.P. Gupta, reinstated the primacy of the judiciary in deciding judicial appointments, especially the Chief Justice of India. This gave birth to the Collegium system in India, wherein the CJI along with two senior most judges of the Supreme Court would decide the appointment and transfer of judges to the Supreme Court and the High Courts. This Collegium system then was enlarged to include the CJI and the four senior most judges of the Supreme Court in In Re: Special Reference Case (‘Third Judges’ Case) in 1999. Since then, the Collegium has been functional, and making judicial appointments, but the controversy pertaining to the same did not die down. In 2014, the Parliament passed the National Judicial Appointment Commission Act seeking to provide a mechanism for judicial appointments, which was struck down by the Supreme Court in 2015 and the primacy of the Collegium was reinforced.
The last six years of Narendra Modi led National Democratic Alliance (‘NDA’) has seen a huge tussle with the judiciary over the judicial appointments, which has reached enormous proportions, with the resignation of the Chief Justice of Madras High Court, Smt. V. Tahilramani, on 6th September, 2019 who was transferred to the Meghalaya High Court by the Supreme Court collegium, owing to inexplicable reasons. In fact, from the first month onwards, the Modi Government interfered grossly with judicial appointments, when they nixed the elevation of Gopal Subramanium, Senior Advocate, to the Supreme Court in June, 2014, on vague and unsubstantiated allegations, which finally made Gopal Subramanium to withdraw from the process. In September, 2017, Justice Jayant Patel, second senior most Judge from Karnataka, resigned from his position protesting against his arbitrary transfer to Allahabad High Court, when he was poised to become the Chief of Karnataka High Court. The delay in the elevation of Justice K.M. Joseph to the Supreme Court in August 2018 is known to all.
There have been many other cases of the Supreme Court collegium arbitrarily modifying its own recommendations, including when the collegium recommended the elevation of former Chief Justices of Dehi and Rajasthan, Rajenda Menon, and Pradeep Nandarjog, in December, 2018, and then in January, 2019, modified the same, by elevating two other judges to the Supreme Court, who were junior to the former ones, causing huge outrage and disquiet amongst the Bar and the Judges themselves. This disquiet has now become a full massacre of the principle of judicial independence, impartiality and integrity.
The latest ‘victim’ of the collegium is Justice Akil Kureishi, who was recommended to be elevated to the Chief Justice of Madhya Pradesh in May, 2019, but the Government disagreed with his recommendation, and sent back the proposal twice in April, 2019 and in August, 2019 respectively. Shockingly thereafter, the Supreme Court collegium modified its recommendation by transferring Justice Kureishi to Tripura High Court on 5th September, 2019. In both cases of Justice Tahilramani and Justice Kureshi, it is said that Modi Government was against them, since Justice Tahilramani had authored the famous Bilkis Bano judgment relating to Gujarat riots in 2017, and upheld the conviction and life imprisonment of 11 persons for gangrape of the victim, and the killing of her several family members, while Justice Kureshi had sent Amit Shah, the current Home Minister of India, and one of the prime accused in fake encounter cases of Sohrabuddin, to jail in 2010. All these egregious cases show that the entire premise of the collegium, i.e., to be free from executive interference, no longer exists now, since the Modi Government is literally deciding the judicial appointments, and we all know what is the effect of these appointments, when cases of life and liberty like that of Kashmir cases get adjourned for weeks, without any effective hearing.
The Constitution makers were aware of this peril, and had tried to do a balancing act, but these are not normal times. At a time when the judiciary had to be the strongest institution, it has turned out to be the weakest, collapsing like a pack of cards, in the face of executive bulldozing. The entire ethos of the Supreme Court being a counter-majoritarian institution is lost now, and it would take decades to undo the damage done on the Court’s legacy, vide the arbitrary and questionable decisions of the collegium in recent times. (IPA Service)