Save Independence of Judiciary

Som Dutta Sharma

ON March 21, Justice J Chelameswar, the most senior judge of the Supreme Court and a member of the Collegium, wrote to the Chief Justice of India to convene the full court on judicial side to discuss the matter of government interference in the appointment of judges to high courts. Copies of this letter has also been sent to 22 other judges of the Supreme Court.

Justice Chelameswar compared the present state of affairs to direct interference of the government in early 1980s when the then minister of law and justice, P Shiv Shanker, wrote a letter to the chief justices of high courts and the chief ministers to obtain consent in writing of the persons recommended for appointment as high court judges for their transfer to states other than their own. This letter was struck down by the Supreme Court on the ground that the letter amounted to interference in the independence in judiciary in the case nicknamed as First Judges case.

This letter by Justice Chelameswer is in reference to the letter sent by the Chief Justice of the Karnatka High Court Justice Dinesh Maheshwari to the CJI bringing to the notice of the Supreme Court that the Law Ministry was writing directly to him and forwarding a fresh complaint by a civil judge against district and sessions judge P Krishna Bhat despite reiteration by the Supreme Court’s Collegium.

More painful for the democracy is that the present Chief Justice of the Karnataka High Court has obediently succumbed to the dirty tactics of the government of forestalling the elevation of a member of Karnataka Higher Judicial Service. It will be curious to see what action the Chief Justice of India takes in the matter. It is, however, imperative for the informed section of the legal fraternity and the democrats to raise their voice against such blatant interference of the central government in the independence of judiciary.

This latest incident should be seen as a sequel to what had happened on January 12, 2018 when an unprecedented controversy erupted in the Supreme Court when four senior most judges chose to go public against the Chief Justice of India questioning his arbitrariness in allocation of cases of far reaching consequences to a particular bench and controversy surrounding the Memorandum of Procedure.

The four judges -- Justice Chelmeswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph -- held a press conference and released a letter to the press which they had written to the CJI about two months back.

While addressing the press, Justice Chelmeswar said, “All four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country. For the survival of democracy, it is said, the hall mark of a good democracy is an impartial judiciary.”

Justice Chelmeswar informed the press that they had met the CJI on a particular issue with specific request but they could not convince him that they were right. Expressing their helplessness, Justice Chelmeswar said, “Therefore, we were left with no choice than to communicate it to the nation that please take care of the institution and take care of the nation, because we have heard a lot of wise men talking in this country earlier.”

In oral address to the nation through the press, Justice Chelmeswar said, “I do not want that twenty years later, some very wise men in this country blame Chelmeswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph sold their soul; they did not take care of this institution; they did not take care of interests of this nation. We do not want it to be said. So, we place it before the people of this country.”

Justice Gogoi, who is next in seniority to become the Chief Justice (if not superseded for his speaking out with other three members of the collegiums), to a question what was the matter over which they had met the CJI on that morning, said, “It is an issue of assignment of a case which is an issue raised in the court.” Justice Gogoi confirmed that the issue was assignment of the case seeking probe into the death of CBI judge B H Loya.

This happening was indeed an unprecedented and disturbing. Unprecedented because in the past the judges have not aired their internecine feud in the public and no such cleavage among the members of the collegium came in public domain. This happening was disturbing for the reason that the issues raised in the letter issued to the press have far reaching consequences if not taken care of immediately.

The Indian Express, in its editorial of January 13, noted that the four judges have posed enormously serious question marks against the institution they are invaluable part of and further commented that given the judiciary’s critical role in the constitutional mosaic, this is a moment of reckoning for other institutions as well, the executive and the legislature.

The letter written by the four judges which was released in the press meet had posed following points:

i. Certain judicial orders passed by this court have adversely affected the overall functioning of justice delivery system and the independence of the High Courts, besides impacting the administrative functioning of the office of the Hon’ble Chief Justice of India.

ii. There are instances where cases having far reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches of their preference, without any rational basis for assignment. This must be guarded against at all cost.

iii. The propriety of dealing with the subject matter of Memorandum of Procedure (MoP) by another bench when the Memorandum of Procedure was subject matter of a decision of Constitution Bench (a bench of five judges). The letter mentions that “the Government of India has not responded to the communication and in view of the silence, it must be taken that the Memorandum of Procedure as finalised by the collegium has been accepted by the Government of India on the basis of order of this Court. Therefore, there was no occasion for the Bench to make any observation with regard to finalisation of the Memorandum of Procedure or that, that the issue cannot linger on for indefinite period.”

The debate that followed in the press and electronic media completely sidelined the issues and was diverted to vituperative public discourse. The Bar Council had an opportunity to seize initiative for a campaign of independent National Judicial Commission or at least pushing reform in the working of the Apex Court in the Country. The Supreme Court Bar Association attempted only to diffuse the situation when it demanded that all Public Interest Litigations including the one seeking probe into the death of CBI judge Loya should be heard by the Chief justice of India or any of the four top Judges who comprise the Supreme Court collegiums.

BJP general secretary Ram Madhav set the tone for his party’s spokespersons by saying that discipline is essential in classrooms and in the Supreme Court. Another functionary of RSS, J Nand Kumar, in a Facebook post slammed the four judges for “poisoning the water” by alleging, as reported in the Indian Express, that public attack against the CJI closely followed his order to reopen cases relating to the 1984 anti-Sikh riots was a conspiracy.

The present crisis in the Supreme Court, Professor Upendra Baxi aptly said, involves mainly a contention on how judicial business should be conducted.

No doubt the Chief Justice of India in the constitutional scheme is first among equals and is given the responsibility of being the Master of Roster. In constituting roster, the Chief Justice has to perform mainly two tasks. One is to form the benches of the judges. Second task of the CJI is to categorise the cases and to decide which category of cases is to be heard by which bench. Once it is done, then the CJI has no role to play in the Roster Business. Problem, however, sometimes arises when the particular case is withdrawn from its designated bench and assigned to another bench. In such situation it is but natural that eyebrows are raised and the discretion is questioned.

One of the important facets of the justice delivery system is that justice should not only be done but it should also be seen as having been done.

Another important issue which requires immediate attention of all those who perceive the judiciary as a fulcrum for fulfillment of our promise to the people of this country of justice - political, economic and social - is the establishment of an independent National Judicial Commission so that the judiciary can be made accountable to the people of the country. Accountability and transparency are two indispensable attributes of an independent judiciary, a guarantee for the survival of democracy in the country.

The National Judicial Appointment Commission Act, 2013 was quashed by the Constitution Bench of the Supreme Court in Advocates on Record Association v. Union of India, popularly known as Fourth Judges case, on the ground of interference in the independence of judiciary. Since then the nation has witnessed face-off between the judiciary and the executive on a number of occasions. It is high time that the demand for establishment of a National Judicial Commission is taken forward. 



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