December 25, 2022

Threat to Judicial Independence

THE Modi government has stepped up its attack on the Supreme Court.  In the past few weeks, the union law minister, Kiren Rijiju, has been making a series of statements, both outside and inside parliament, criticising the collegium system of appointing judges as alien to the constitution and asserting that the ‘spirit’ of the constitution says it is the government’s right to appoint judges. 

The vice president of India, Jagdeep Dhankhar, while presiding over the first session as chairman of the Rajya Sabha, also launched an attack on the Supreme Court judgment which invalidated the National Judicial Appointments Commission Act, 2014 as an attack on parliamentary sovereignty.  It is evident from the remarks of these two persons, who hold official positions that the signal for the attack has come from the highest quarters.

Not satisfied with the remarks against the collegium, Rijiju has gone further in making veiled threats to the higher judiciary. He declared in parliament that “Unless the procedure of appointment of judges changes, the issue of high judicial vacancies will keep cropping up”.  The implication is clear – the government will continue to hold up and block appointment of judges to the High Courts and the Supreme Court suggested by the collegium until the judiciary becomes compliant with the wishes of the government as to who should be appointed as judges. 

The law minister has even gone to the extent of lecturing the Supreme Court that it should not be entertaining bail applications and “frivolous” PILs and waste its time.  The loquacious minister has more ominously issued a direction, “We have to also ask the judiciary to ensure that the deserving people are given justice and those causing unnecessary burden are taken care of, so that they do not cause disturbances while the court is functioning or the court is discharging its duties”. 

The message is clear:  The Supreme Court should not be taking up cases concerning the individual liberty of citizens, or, matters where the executive is held to account for its misdeeds by a pesky petitioner. 

 Chief Justice Chandrachud, gave a firm counter to this gratuitous advice by stating that no case is too small for the court and asserted that “If we do not act in matters of personal liberty and grant relief, then what are we doing here?”  During the short tenure of Chief Justice UU Lalit and uptil now, the Supreme Court has been more attentive to bail pleas of those who have been in jail for long periods of time and whose bail applications were rejected by the lower courts.  It was during the tenure of UU Lalit as CJI that Teesta Setalvad got interim bail and Siddique Kappan, who was in jail for two years under the Unlawful Activities Prevention Act, was granted bail.  Subsequently, against the vigorous objections of the National Investigation Agency (NIA), the Supreme Court ordered house arrest for Gautam Navlakha and dismissed the NIA’s challenge to the grant of bail for Anand Teltumbde by the Mumbai High Court. 

It is this record of the Supreme Court in protecting personal liberty and civil rights that has aroused the ire of the authoritarian government.

Already the government has succeeded in getting some pliant judges to the Supreme Court.  In recent times, we have seen Justice Arun Mishra (now retired) and Justice MR Shah publicly praising Prime Minister Narendra Modi.  But the government finds the collegium system not amenable to its aim to fully pack the higher judiciary with ‘committed’ judges. Hence, the current attack on the collegium system must be seen as part of the design to capture the higher judiciary. 

The ruling BJP circles are talking of the need for another legislation to set-up a Judicial Appointments Commission. By this, it wants to devise a system of appointments in which the executive will have the dominant say. This will be the surest way to get a higher judiciary suborned to the government.  The way the Election Commission has been rendered toothless by appointment of commissioners handpicked by the government should be a warning.

Democratic opinion, including the Left, have been advocating for long the setting up of a broad based National Judicial Commission which works in a transparent manner with clearly-defined rules regarding the selection and appointment of judges.  Such a commission in which both the higher judiciary and the executive are represented will also have distinguished jurists and other representatives of independent bodies.  The executive cannot have a dominant say.  

The National Judicial Appointments Commission Act, which was passed by parliament in 2014 under the Modi government, was flawed and did not adequately firewall against executive control. 

At present, the context has changed with the Modi government out to undermine judicial independence. Any effort to substitute the collegium system with a Judicial Appointments Commission in which the government has dominance must be opposed.  The collegium system, in the meantime, needs to be improved with a transparent and accountable system in selecting candidates for judgeship. 

(December 21, 2022)