March 22, 2020

Modi Regime: Independence of Judiciary in Peril

P V Surendranath

IT seems that Modi regime has perfected an art of taming the judiciary by interfering with its independence by appeasement, browbeating, surveillance and harassment. Nomination of Ranjan Gogoi to Rajya Sabha is latest of its ploy in this regard. It is yet another fatal jolt to Indian judiciary made by Modi regime. The nomination of Gogoi not only impinges credibility, integrity and independence of the judiciary and public faith and confidence in it, but also reflects the present nature, position and stature of judiciary. This is a brazen violation of independence of judiciary from within and without. Ranjan Gogoi demitted the office of the chief justice of India on superannuation on November 17, 2019 only. His tenure as CJI was arguably the most controversial period and it has been widely perceived that the supreme court could not discharge its function and role as sentinel on qui vive during this period in protection of fundamental rights and civil liberties as illustrated in the Kashmir issue, Rafale case, Assam NRC matter, Sabarimala review petition etc., and whereas the executive was over protected by its actions, inactions and omissions.

It is on record that Ranjan Gogoi himself said, “There is a view point that post-retirement appointment itself is a scar on independence of the judiciary. This is a valid and strong point”. While dealing with re-appointment of members of tribunals, constitution bench headed by Gogoi struck down the provisions in tribunal rules, which enabled re-appointment of tribunal members after retirement by observing that “the provision for re-appointment would undermine the independence of the members who would presumably be constrained to decide matters in a manner that would ensure their re-appointment”.  He observed further, “the discretion accorded to the central or state governments to re-appoint members after retirement from one tribunal to another discourages public faith in justice dispensation system, which is akin to loss of one of the key limbs of the sovereign”. He further added that, “it increases interference by the executive jeopardising the independence of judiciary”. By the same standard nobody can resist the criticism that the nomination of Ranjan Gogoi to Rajya Sabha is a reward for favourable judgments, orders and actions including the judgement in Babri Masjid case and Rafale case at the hands of Ranjan Gogoi in favour of the executive, the Modi regime. Presumably nomination is made by the Modi regime with the consent of Gogoi. He should not have consented for the proposal in deference to independence of judiciary and the principle that justice shall not only be done, but shall also be seen to be done.

The Gogoi issue is not an isolated incident at all. Former chief justice of India, P Sathasivam retired on April 26, 2014 and was appointed as governor of Kerala in the month of August, 2014 itself by the Modi government; even without allowing a cooling period and raising a big question mark against independence and integrity of the judiciary.

When certain judges for their orders in favour of the executive are rewarded, judges whose judgments were not palatable to the Modi regime were harassed in all possible ways and means. The recommendation of the supreme court collegium for elevation of K M Joseph, who scrapped presidential rule in the state of Utharakhand in the year 2016 was initially objected to by the Modi regime citing invalid and unsustainable grounds. Then even after reasserting the recommendation by the supreme court, the collegium headed by Deepak Mishra, the Modi regime protracted and delayed his appointment for about eight months, despite the fact that he was recommended for elevation by the collegium originally in January, 2018.

Jayant Patel was acting chief justice of Gujarat from August 13, 2016. In normal circumstances he should have become chief justice of Gujarat High Court. But he was transferred to Karnataka. In Karnataka he was second most senior and would have become chief justice after the retirement of the then chief justice. But Patel was transferred to Allahabad High Court to retire where his ranking would be No.3, arbitrarily denying the chances of being chief justice of a high court or being elevated to supreme court. It is pertinent to note that Jayant Patel had decided on the Ishrat Jahan encounter killing case in a way not palatable to Modi regime.

Akhil Abdulhamid Kureshi who ruled against Narendra Modi and Amit Shah during his stint in the Gujarat high court, was initially recommended by the collegium of the supreme court for appointment as chief justice of Madhya Pradesh High Court. But the central government objected to it and in the month of September 2019, the collegium headed by then CJI, Ranjan Gogoi, modified the recommendation and recommended Kureshi for appointment as chief justice of the High Court of Tripura. In the meanwhile, when the vacancy of chief justice occurred in the High Court of Gujarat due to elevation of chief justice to supreme court, Kureshi was not initially made as acting chief justice as per the convention and practice, but transferred to High Court of Bombay. Even after modified recommendation for appointment as chief justice of High Court of Tripura, the central government delayed the matter.

Vijaya Tahilramani, Chief Justice of Madras High Court, was transferred to High Court of Meghalaya. She had to put in her papers on rejection of her appeal for reconsideration of her transfer, making a dignified and bold exit from the judiciary.

Muralidhar who had passed peremptory orders for emergent and prompt treatment of victims of Delhi riots, arranging ambulance services and free passage of the same in a public interest litigation and made strong observations in the order for prompt registration of FIRs on hearing the matter regarding non-registration of FIRs against hate speeches of Anurag Thakur, Minister of State for Finance, Union of India, Kapil Mishra, a former MLA and BJP leader, and posting the case on February 27, 2020 has been transferred overnight on February 26, 2020.

The aforesaid illustrative incidents graphically demonstrate the track records of Modi regime in indulging in blatant and brazen interference with the independence of judiciary.