THE All India Lawyers Union (AILU) held a national convention on ‘Independence and Accountability of Judiciary’ on September 29 at the Constitution Club, New Delhi.

It was part of a campaign aimed at raising public awareness about the fact that the independence of judiciary is the sine qua non for the survival of democracy and the independence of judiciary can be secured only by making it accountable to the Constitution.

The subject has gained prominence in the wake of the recent face-off between the judiciary and the executive on the issue of appointment of judges to the Supreme Court and various high courts and on the Memorandum of Procedure (MOP).

P V Surendranath of the AILU placed a concept paper on the subject, framed at the National Council of AILU in Kolkata on July 28 and 29, before the convention. The concept paper recommended the functions and powers of the National Judicial Commission.

Addressing the convention, CPI(M) Polit Bureau member Brinda Karat said, “The subject is extremely important and very pertinent today. Both subjects are intrinsically intertwined and extremely important. This issue is not only for Parliament, lawyers and judges to discuss but for every citizen of this country across caste, creed, religion and gender.”

She said we are concerned with what is happening to constitutional institutions which are to function as watchdogs. There are attacks to dilute and sometimes to destroy the institution of judiciary. “How the executive has attacked these institutions. If we look at history, the dark days of Emergency may be recalled. It must be said that the ruling regime and its approach towards democratic institutions makes a fundamental difference,” she said.

The fundamental issue is that those in power aggressively state that they do not accept the basic structure of the Constitution therefore we are at a critical stage. The Home Minister at the floor of Parliament said that ‘socialism’ is a dirty and most abused word. The Chief Minister of the most populous state says that their aim is to get word ‘secular’ removed from the Constitution. 
The constitutional position is settled by the judges who said the basic structure-secularism cannot be tinkered with. When we discuss independence and accountability of the judiciary, we must discuss this also, she said.

Expressing concerns over whether the Constitution as we know it today would survive or not, she said that if the Constitution as we know it today does not survive then the question is whether we as a nation would survive.

 “What is happening to Parliament? Justice Chandrachud, Judge of the Supreme Court, should be congratulated for his opinion in Aadhaar Card case where he said that Aadhaar card bill cannot be considered as a Money Bill,” she said. “It is because the party in power today does not believe in parliamentary democracy. The Aadhaar Card bill was termed as Money Bill because the government did not want to discuss it in the Rajya Sabha where the BJP is not in majority,” she said.

Independence and accountability of judiciary is intrinsically linked but the basic question is accountability to whom. The answer is that the judiciary should be accountable to the Constitution. “The approach of the judge should be am I defending the Constitution or not? When National Judicial Appointment Commission Bill came to Parliament, we made our stand clear. We asked if a judge commits a wrong what to do? We know that impeachment of an erring judge is not possible,” she said.

Four senior judges made public statement that CJI managed the roster giving example of a particular case -- PIL relating to the death of Judge Loya. “It was a serious matter for impeachment which process was aborted. Those signed the motion backtracked. In last 50 years there has been only one impeachment. Present process of accountability is ridiculous. The bill for establishment of National Judicial Commission should also contain investigation and punishment for misbehavior. Combination of these two subjects is important,” Karat said.

She said that the Memorandum of Procedure is being held up since 2014 because the government wants to have majority and the last word in the matter of appointment of judges. We do not accept that two eminent persons are appointed by the government.

Retired Supreme Court Judge Justice V Gopala Gowda said the concepts such as sovereign, secular, socialist, democratic republic epitomized in the preamble of the Constitution were held to be the basic features in the Keshvanandan Bharti case (1973). He stressed that the basic structure cannot be allowed to be amended by taking recourse to Article 368. “There is something wrong with the minister who says that those defending secularism should get their DNA checked,” Gowda said, adding secularism is very important and the Supreme Court had held that it is the basic structure of the Constitution.

Justice (retired) Gowda said the independence of judiciary is important because the judiciary is entrusted with the task of protecting and defending philosophical concepts given in the preamble of the Constitution. These constitutional concepts are being bulldozed today and it is the duty of the judiciary to protect rights of the people.

On the collegium system, Gowda said it does not fulfil people’s aspirations. People with judicial acumen do not make it to the Supreme Court. The executive and the political party in power chose their own men, judges appoint their own relatives. It has not served the purpose. The mechanism for appointment of judges must be given protection of constitutional powers. The judges must be chosen from amongst the capable persons from all regions, all states, all genders, otherwise the Constitution shall not be served. Appointment of judiciary must be entrusted to a body which understands the Constitution.

Accountability and independence of the judiciary are very important keeping in view the types of cases that are being dealt with by it. Gowda in this context referred to the decision of the Supreme Court in Sabarimala case involving protection of equal rights and equal opportunity of 50 per cent of the population by invoking Articles 14, 15 and 21 of the Constitution. 

Disallowing women of age 10-50 years is obnoxious. It violates the dignity and privacy of women. Therefore, independence of the judiciary is required to protect 50% of the population and that is why independence of judiciary is important. Judiciary is capable of correcting its own mistake. Recently the Supreme Court reviewed its retrograde decision on Section 377 of Indian Penal Code and restored the decision of the High Court of Delhi on this issue. In a democratic country like ours, the Macaulay’s law about gay people is outmoded, therefore, the judges must understand constitutionalism.

Interference of the executive in the independence of judiciary is known to all. Justice K M Joseph’s appointment as judge of the Supreme Court was sidelined. We know the attitude of the executive. Reasons given for non-appointment of K M Joseph are not the real reasons. Gopal Subramanium’s elevation was blocked and he had to complain to the Supreme Court that the collegium did not defend his elevation.

Gowda said the independence of Judiciary is at stake. That should be taken care of by lawyers who are custodians of the Constitution. Democracy is at stake. If democracy is to be protected then independence of judiciary must be defended.  

Chander Uday Singh, Senior Advocate at Supreme Court, spoke about his belief that judiciary should have preponderance or superior role in selecting judges and that this role must be paramount. He said that there must be a constitutional body like Election Commission who cannot be removed except by impeachment.

Former Additional Solicitor General Raju Ramachandran reminded the audience that there is no method of scrutiny of the candidate nominated for judgeship to know about his biases, loyalty, sexual history, his independence, political loyalty, personal fibre to test whether he is fit to occupy the position of Supreme Court judge like the one United States of America has where the President’s nominee is quizzed on all these aspects in the Senate. Our judges have the power to strike down constitutional amendments, therefore, it is more essential that a person who is to be elevated must be screened and this screening should not be confined to mere technical competence like income tax, intelligence clearance. The screening must be by public participation, by whole civil society and the political class should be part of this process. We may like or not like political dispensation but we have to include political class.

Som Dutta Sharma, General Secretary of All India Lawyers Union, conducted the proceedings. Sharma said the campaign for the establishment of National Judicial Commission will be taken to every nook and corner of the country. Similar conventions will be held in every state.