By Arun Srivastava
Before the Lok Sabha elections in April/ May 2024, the RSS and Narendra Modi government have launched the most ruthless operation to saffronise the judiciary, turn it subservient to the Modi government and rob its independent identity and authority.
The veil of chastity which wrapped the plan unfolded only a few days back by the Vice President Jagdeep Dhankar was lifted on January 16 by the union law minister Kiren Rijiju. He did not hide the censorious intentions of the Modi government in his letter to the CJI DY Chandrachud that the government would constitute a search cum evaluation committee to select the judges as it was not satisfied with the selection process of the Collegium.
Modi and his colleagues might have nursed the view that this letter would make the judiciary fall in line, but this coercive mechanism has boomeranged. The Supreme Court is learnt to have made it clear to the authorities that it will not tolerate any “political” interference in the appointments of apex court and high court judges. Rijiju has forced the collegium to harden its posture. It has told; “Once a five-judge constitution bench has quashed (in 2015) the NJAC as unconstitutional, there is no question of the Supreme Court taking any administrative action to undo the judicial verdict.”
With this, the battle line has been distinctly drawn. It is absolutely correct that the letter is nothing new but a reiteration of the central government’s view that the MoP (memorandum of procedure governing judicial appointments and transfers) should be modified to give the executive a say. Similar letters were written in 2014, 2016, 2017, 2018 and 2019 asserting that the government have a “representative” in a joint “search committee” formed and supervised by the CJI. The only difference is earlier letters were by Rijiju’s predecessor, Ravi Shankar Prasad. Rijiju has added formation of such committee at the High Court level. This will facilitate full control of the Modi government on the judiciary.
Quite interesting Rijiju sent his letter on January 6, the day the apex court was to hear a contempt petition against the Union law secretary over the Centre’s failure to clear several recommendations despite multiple iterations by the collegiums. On January 6, the bench of Justices Sanjay Kishan Kaul and A.S. Oka had questioned attorney-general R. Venkataramani on the delays in clearing recommendations as well as the Centre’s unprecedented move of sending its own recommendations for judicial appointments.
“Speeches made by the high constitutional functionaries in public, making comments on the Supreme Court collegium, are not very well taken. You have to advise them,” the court had told solicitor-general Tushar Mehta.
Though he did not concede that he was reclaiming the NJAC, which had the similar provision, he through his letter made it abundantly clear that the judiciary has no independent identity and authority and would have to work under the thumb of the government. The government would set up the search committee at the SC and High Court levels. In SC the committee would have a central government nominee and at HC level it would have state and central government nominees.
There is enough ambiguity about these government nominees; whether they will be from lawyer fraternity, or a bureaucrat or as seasoned politician. Yet another aspect is what power and authority they would have. Can they veto any decision of the collegium, or object to the name of the selected judges. In case he dissents to any name, and when the matter ultimately goes to the government for approval, the law ministry will not approve the name as its representative has opposed the name of the person.
For making the judiciary to accede to the coercive tactics, Rijiju also mentioned that the finalisation of the Memorandum of Procedure (MoP) regarding appointment of judges is still “pending”. The search committee will provide inputs on “suitable candidates” to the appointment panel or the collegium. Undeniably Rijiju has cast aspersion on the judges presiding at the SC and HC. In a way he has expressed suspicion on the credibility of the judges.
Rijiju in his pursuit to keep his political master happy has smeared the face and image of the judiciary and judges not only in India but across the global fraternity. He sent the message that Indian judges and judiciary are unreliable. Nothing could be worse than it. No doubt the collegium system started functioning after 1993, no political party, not even the BJP late prime minister Atal Behari Vajpayee questioned introduction of this system. What made Modi to redraw the entire process?
The letter unravels that the search-cum-evaluation committee would consolidate the data on advocates — including inputs on their performance as lawyers — and if there are any complaints pending against them, and forward it to the collegium, which will then take a final call on appointments. It obviously implied that any lawyer not subscribing to the RSS hegemony of Hindutva would not be considered fit for upgradation to the post of judge. This suggestion of Rijiju basically runs down the basic norms of MOP. Does Rijiju intends to deride the SC collegium of acting in a nonprofessional manner? While the Modi government feels that finalisation of the MoP could not occur unless the search committee is constituted, for the judiciary the existing MoP is the “law of the land” and should be followed.
It is quite obvious that RSS has been using Rijiju and Jagdeep Dhankar to project judiciary’s wrong image and at the same time coerce them. As an individual Dhankar does not matter much for the RSS, it is the office that he is holding is of primary importance for RSS. The saffron brigade has been trying to floor judiciary by using all kind machination. First Dhankar questioned the basic structure of doctrine, and now Rijiju has fired a salvo in the form of need to constitute a search and evaluation committee.
Indian judiciary has been a major impediment in the path of the arbitrary functioning of the government, though in the past a number of judges of the Supreme Court were seen endorsing Modi government’ policies and also eulogising Modi. Surprisingly at that time the Modi government and its law minister Kiren Rijiju did not criticise the judiciary for not caring for peoples’ cause.
By questioning the basic structure doctrine, Dhankar not only reiterated the principal tactic of RSS and Narendra Modi that the primacy of Parliament is absolute, he also tried to send the message to the people that democracy in India is yet to mature. His observation simply negated the basic concept that basic structure doctrine is good for robust democracy. By raising this issue at this stage, Dhankhar has obviously expressed his disagreement with the verdict in the Kesavananda Bharati case.
What is most interesting is Dhankar raised the issue of basic structure doctrine after 50 years of its acceptance. It is worth mentioning that in April 1973, a 13-judge bench of the Supreme Court in a 7:6 majority in the Kesavananda Bharati case had declared that Parliament’s right to amend the Constitution is not unfettered. Modi government is angry with the judiciary for striking down the NJAC.
Quite shocking neither Dhankar nor Rijiju raised this issue during the last six years of Modi rule. The RSS and the Modi government resorted to this strategy only after a huge number of PILs were filed before the apex court exposing the designs of the Modi government. True enough instead of holding judiciary guilty he should have asked Modi to open dialogue with the judiciary.
Rijiju’s allegation against judiciary is purely of wild nature. He could not substantiate his accusations of judiciary working according to its whim, no effort was made to select good judges, and provisions of reservation could not be properly followed. Now it is absolutely clear that Modi has made implementation of the NJAC provisions as his prestige matter. The authority of the judiciary has to be smashed if the RSS is to proceed with its plan for saffronising judiciary.
It is worth mentioning that senior Supreme Court lawyer and Congress veteran P Chidambaram through a series of tweets has described Dhankar’s criticism of the basic structure doctrine as dangerous and part of planned confrontation with the judiciary. According to him the ‘Basic Structure’ doctrine was evolved as a safeguard against a possible majoritarian assault on the Constitution. He also sought to know what prevented the government from introducing a new bill, after Supreme Court struck down the NJAC Act.
Since Modi treats every one as inferior soul not competent to talk to him, he dislikes he concept of having dialogue. He could have sorted out this issue by having a dialogue with the stake holders of the judiciary. If at all the RSS and Modi government felt that Supreme Court was intruding into the executive and legislature’s domain, they should have undertaken measures to put the matter in right perspective. They kept in abeyance since at that point of time they did not perceive that their mission would face any obstruction. In the wake of recent changing political reckoning and scenario they are left with no alternative but to exert coercive mechanism.
Assault on one constitutional institution by another is quite unprecedented in the democratic and constitutional history of India. But the BJP leadership has preferred to cross this Lakshman Rekha. The RSS and BJP are not at all bothered of maintaining transparency in their functioning and approach. They try to project that winning elections has given power to do away with the necessities of the democratic functioning. Winning election does not guarantee them to misuse the peoples’ mandate to serve their narrow end. The people are witness to the misuse of power by Modi government. (IPA Service)