The most telling indicator of the assault on the judiciary is the non-appointment of judges
Colin Gonsalves
The Supreme Court is definitely facing an institutional crisis of the kind that it has never faced before, mainly, but not exclusively, on account of the most ferocious attack ever on the judiciary by the executive. The current controversy regarding the contrary orders passed by different Benches ended rather amicably, and the institution is perhaps shaken up for the better.
This is a government whose main aim is to destroy the credibility of the judiciary and undermine its independence. Just as Indira Gandhi once wanted a “committed judiciary”, the Central government today wants to saffronise the judiciary. It doesn’t want an independent judiciary. It doesn’t want judges of integrity. It doesn’t want thinking judges. It wants judges who will toe the line.
Judges, it’s time to stand up
The most telling indicator of this assault on the judiciary is the non-appointment of judges. This defiance — and this kind of defiance has never happened, where the collegium sends a list of judges to be appointed and the government does not appoint them — is defiance of the highest order. But what is sad is that our judges have not been able to put their act together and insist on the appointment of judges. They could have done it on the administrative side. They can constitute a Constitution Bench on the most important issue of appointment of judges.
The Supreme Court could have given directions to this government to appoint judges according to whatever Memorandum of Procedure it decides. The time has come for judges to stand up. We are yet to see that determination in our judiciary. Frankly, lawyers across India are disappointed that a shortfall of judges has been there for so long and there is no sign of activity to rectify this by the higher judiciary.
On the question of corruption in the judiciary, I would emphasise the role of the executive in enticing judges with the allotment of houses and appointments to post-retirement statutory posts. The executive wants a judiciary that is beholden to it. Politicians and governments try their best to influence judges. Earlier, there used to be fear in approaching judges; today, it is not so.
In the face of intimidation
We are living in a dangerous time. Judges are very often and very unfairly at the receiving end. They can’t speak up. They can’t appear on TV. In fact, the perception among many — and this tribe is increasing — is that there are more and more judges willing to cross the line. The stories one hears in the corridors of the court are unbelievable, though probably true. Recruiting people of integrity and vision is particularly important today when the executive appears invincible. This is exactly the time to show some spine.
When Benches are being constituted on triple talaq and liquor, surely a Bench can be constituted on the appointment of judges, judges’ salaries, and to inquire about political interference in the judiciary? Why is the judiciary quiet in the face of such intimidation by the executive? Why can’t it evolve an enforceable code of conduct so that if any politician or party tries to influence a judge, this will be immediately reported and punishment be meted? The people and lawyers support the judiciary and expect judges to be resolute.
As told to Anuradha Raman
NO | Gaurav Bhatia
Citizens are aware that this great institution has the resilience to redeem itself
Gaurav Bhatia
In public perception, the Supreme Court is a temple of justice. The Constitution describes the judiciary as one of the three pillars of our democracy. This expression is an embodiment of the spirit of the highest court of the country. It is mostly the Supreme Court, along with the High Courts, that comes to the rescue of the common person and ensures that his or her faith in the rule of law is not shaken.
Facts of the controversy
What transpired in the apex court in the last few days definitely does not augur well for the nation, especially for the litigants, the Bar, and the Bench. Let me present the facts relevant to the present controversy. The Central Bureau of Investigation (CBI) registered a FIR on September 19 in the Prasad Education Trust matter and the first PIL was filed by the Campaign for Judicial Accountability and Reforms (CJAR) forum on October 30. This was mentioned on November 8 before Court No. 2 and was directed to be listed on November 10. Thus, there was no urgency in the matter. However, on November 9, a second PIL which was identical to the first, and not numbered, was mentioned before Court No. 2. It would have been a healthy legal practice to club both as the matter was being heard on November 10 by the same Bench, already constituted to hear the matter.
The FIR does not name any judge of the apex court and there are no allegations against any judge. Following K. Veeraswami v. Union of India (1991), no FIR could be registered against a sitting Supreme Court judge without the approval of the competent authority.
What the petitioners did amounts to forum shopping and the test to determine that is laid down in Union of India v. Cipla Ltd. (2016). Two factors were spelt out: functional similarity and subterfuge on the part of a litigant/lawyer. Applying both, the second PIL is against the professional ethics of advocacy and a gross misconduct.
As to who has the authority to constitute a Bench, the Supreme Court held in State of Rajasthan v. Prakash Chand (1997): “The administrative control of the High Court vests in the Chief Justice alone... On the judicial side the Chief Justice is only the ‘first among the equals’. He alone has the prerogative to constitute Benches of the court and allocate cases to the Benches so constituted... The puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions.”
Role of the CJI
Having enunciated that the Chief Justice is the “master of the roster”, we need to examine whether he could pass an order on the administrative side to constitute a Bench (not comprising the Chief Justice) to hear these two PILs, or whether he should have recused himself even on the administrative side. This is clarified in D.C. Saxena v. Hon’Ble The Chief Justice Of India ( 1996) where the Supreme Court held: “When imputations were made against the Chief Justice, the petitioner assumed, in our view, ‘wrongly’ that the CJI cannot constitute Benches nor should he discharge the functions of Chief Justice until the matter is decided… This responsibility flows from the office and none including a litigant has the right to demand for contra position.” The Bench did not initiate contempt proceedings either. The entire episode has created an artificial divide and deeply wounded the Supreme Court. Notwithstanding that, the country’s citizenry is aware that this great institution has the resilience to redeem itself.
The views expressed are personal
IT’S COMPLICATED| Manish Tewari
The Supreme Court needs to separate fact from fiction. What is at stake is the independence of the judiciary
Manish Tewari
The portentous developments in the Supreme Court need to be located in the context of a larger institutional power struggle that has been raging between the executive and the judiciary for over a quarter of a century. In 1993, through what is known as the Second Judges case, the Supreme Court appropriated the power to appoint judges to the High Courts and the Supreme Court by interpreting the word “consultation” in Article 124 (2) of the Constitution to mean concurrence of the Chief Justice of India for each and every appointment to the higher judiciary. The Supreme Court further reinforced the position in 1998 in what is called the Third Judges case, which, in fact, was a reference to the court from the then President of India seeking a clarification on certain aspects of the judicial appointments system, which is also known as the collegium system.
Judiciary versus executive
Since then, the executive has been ‘itching’ to wrest this power back from the judges. The discourse on purported judicial activism, the Judicial Standards and Accountability Bill, 2010 that lapsed on the dissolution of the 15th Lok Sabha, and the National Judicial Appointments Commission Act (NJAC), 2014 that was subsequently struck down by the Supreme Court with a majority of 4-1 as violative of the basic structure doctrine are but manifestations of that struggle for supremacy.
The Supreme Court’s striking down of the NJAC has not been taken very kindly by the current National Democratic Alliance government. One mechanism that Prime Minister Narendra Modi and his not-so-merry men have exploited to the hilt is the back door that the Supreme Court inadvertently left ajar by providing a role for the government in conceptualising the Memorandum of Procedure (MoP) that would regulate the process of appointment of judges to the higher judiciary. The government has skilfully utilised the protracted negotiations over the MoP to hobble appointments to the higher judiciary.
Concurrently, there is a sustained attempt to build ‘one man’ into that knight in shining armour, the incorruptible saviour who would deliver the nation from the cesspool of sleaze. This narrative is being implemented by tarring everyone else with a thick black brush — political opponents, institutions, even leaders within their own political realm. Law enforcement agencies are being ruthlessly and unscrupulously mis-utilised to execute this ‘tar and defame’ strategy.
The current controversy
The registration of an FIR against a retired judge of the Orissa High Court and some other persons, for allegedly attempting to influence through extraneous means proceedings in the Supreme Court, must therefore be viewed with circumspection if not scepticism. In K. Veeraswami v. Union of India (1991), the Supreme Court laid down the law clearly: “We therefore direct that no criminal case shall be registered under Section 154, Cr. P. C. against judge of the High Court, Chief Justice of High Court or judge of the Supreme Court unless the Chief Justice of India is consulted in the matter... If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court... These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the executive for collateral purpose.”
It is, therefore, evident that if the investigating apparatus had stumbled upon something “unsavoury” while probing the retired judge of the Odisha High Court or his alleged associates, they should have brought it to the attention of the Chief Justice of India or any other judge as the law mandates in the Veeraswami judgment. Refraining from doing so is scandalous, if not contempt of the highest court of the land.
Lawyers and judges are intelligent people but politics can be devious business, especially at a time when a great evil stalks our land. The highest court needs to go very deep into the matter and separate fact from ostensibly deliberate fiction, for what is at stake is the very independence of the judiciary.
Published - November 17, 2017 12:14 am IST
