Physical health of the republic is robust, but at the cost of its heart and soul – Anjana Prakash

"Only people who, without any vested interests, raise uncomfortable questions are true nationalists."

—-

ANJANA Prakash is a senior advocate at the Supreme Court, and a former judge of the Patna High Court. An alumna of the Patna Women's College, she studied law at the Bhagalpur University. She practised at the Patna High Court and rose to be among the ranks of the topmost criminal lawyers in that court. She was the first woman to be elevated to the position of senior advocate at the Patna High Court, along with Justice Seema Ali Khan. During her time at the Patna High Court, she was known to be an astute lawyer with a kind heart and a jovial attitude, always ready to help people who needed legal aid and advice the most. She was especially interested in child rights and civil liberties, and acted as amicus curiae in multiple matters.

She was appointed a judge of the Patna High Court in 2009, and served till her retirement in 2016. She has been practising at the Supreme Court since then.

A votary of greater accountability in the government and the judiciary, Prakash has been a vocal critic of the application of Unlawful Activities (Prevention) Act (UAPA) and an advocate of gender parity in the judiciary and outside it.

On the eve of India's 74th Republic Day, Prakash spoke to The Leaflet about the health of the republic, the challenges and hopes that she sees for it, and how to reform the present system of appointment of Supreme Court and high court judges.

Q: What is your assessment of the health of the republic?

A: Before I start, I must thank you for giving me a platform to share my concerns which I am certain are not mine alone. I also declare that I have no political affiliations of any kind. I believe myself to be a liberal and progressive nationalist whose faith in the Constitution nothing can shake.

Now to answer your query on the health of the republic in true [Roman politician] Mark Antony style, I would say that the physical health of the republic is round, robust and muscular, but at the cost of the heart of the nation and soul of the republic.

As a common person, I must share the deep sorrow within me for living in the present state of affairs. Everyone seems so agitated, impatient and furiously angry with the other, ready to react with or without provocation. Where has the Eastern wisdom of resilience to unfavourable circumstances vanished? We seem to have become a nation perpetually on the boil and with a short fuse. I wonder if this is because we have become less confident in ourselves and unsure of the safety of the spaces around us. One just has to switch on the television and watch the anchors, who I am told have terrific TRPs. I often wonder whether they ever look at themselves in the mirror and feel humbled by the sacrifices of unsung heroes.

Physically, the wealth of a few has increased manifold. Their lifestyles are flaunted as though they are our role models. In putting such persons on the list of richest persons in the world, our fellow citizens are suffering the effects of indiscriminate deforestation, mining and destruction of coastal areas. Wide roads, superfast trains, and malls, even in rural areas, are advertisements for development. All this while unemployment has increased, forcing our youths to surreptitiously make money, Jamtara style. The increase in numbers of instances of suicide amongst the youth reflects their helplessness and hopelessness. There is no longer a preventive social net. Evidently, the education system has failed us.

I don't know whether you have noted the change in the manner crimes are being committed now. They are becoming more and more beastly. The bestiality is not only abhorrent but also alarming. The society needs to do something about it and the one suggestion I have is for the nation to take a pause, reflect, meditate and return to humanity.

Also read: Loss of the moral universe in a neoliberal order

Q: You said that you are an apolitical person. Does it mean that you have remained unaffected by our political leaders?

A: Not really. I can easily recall two politicians who influenced me. One is Lal Bahadur Shastri, who was never a mainstream politician but captured the imagination of the nation. However diminutive or antithetical to a macho image, when Shastri raised the slogan 'Jai jawan jai kisan' in his gentle but firm voice, requesting giving up cereals every Tuesday during the Indo-Pak war, we followed it religiously. Such was the inclusivity of his call that it raised not only his esteem in our eyes but also our own. It was a question of sharing a burden of the nation, a way of showing solidarity with the concerns of the nation. Choice was given and it was gladly taken.

The second person to impress me was Atal Bihari Vajpayee. Before I tell you why, let me tell you that I am an ardent fan of Vividh Bharti [service of All India Radio]. So during Vajpayee's time and the Sarv Shiksha Abhiyan, and dot at 8 a.m. in the morning, if I am not mistaken, a poem turned into a beautiful song by him would play on the radio. First he would say, "Chalo bachon, school ki ghanti baj gayi hai" (Let us go kids, the school bell has rung), and then a gong would ring and the song School Chale Hum would play. The words "badal sa garjae hum, sawan sa barsey hum, sooraj sa chamke hum" (we bellow like the clouds; we come down like the rain; we shine like the sun) infused one with a message that education was the only salvation.

Incidentally, this call was not meant for the middle-class population, but for the marginalised children, both of urban and rural areas, to whom the school bell was a familiar sound. The poet that he was, he understood the power of words and imagery. On the world front, his statesmanship, erudition and depth of character made him a towering personality, and made me proud to be an Indian.

Q: What are your views on the Collegium system of appointments in the higher judiciary?

A: I think the Collegium system serves the requirement of the Basic Structure of the separation of powers, which is the bulwark of the Constitution.

It has not always acted correctly or courageously, but that does not make the system bad. We must not forget that the system is manned by human beings; hence it is subject to the frailty and fallibility of the human race. As they say, the fault lies not in our stars but in our hearts because we are underlings. We need to train ourselves to rise above our peeves and prejudices.

This explains the non-elevation of Justice A.P. Shah, one of the finest judges the country has produced, to the Supreme Court, or Justice Dr. S. Muralidhar, another gem who has not been considered as yet. There may be many more like them, but not within the limited vision of my horizon.

We also cannot forget Chief Justice Vijaya Tahilramani, who resigned in 2019 when she was sought to be transferred by the Collegium on frivolous grounds later found untrue. We also have instances of the Collegium not standing by its recommendations of judges, such as in the case of Justice Akil Kureshi.

Also read: As Chief Justice of Rajasthan HC, Akil Kureshi retires on Sunday, his non-elevation to the Supreme Court may well certify his independence

Q: You have pointed out the flaws; what is the good side? Why must the government or an outsider to the judiciary not be included in a Judicial Appointment or Search Committee?

A: In order to answer this query, I wish to briefly take you through the broad procedure which is adopted for the appointment of judges. According to it, a high court chief justice, with two of the senior-most judges, makes a choice among lawyers. The guiding principles are Article 217 of the Constitution and the Code of Conduct adopted in the Chief Justices' conference in 1999.

When we read Article 217 closely, we find that it says the candidate should have been an advocate for ten years in a high court. It does not say anything more. When the Article says 'advocate', it means the advocacy of a candidate, that is, their conduct, integrity, honesty of purpose, erudition, commitment to the profession or to the judicial system, and reputation or standing among their peers. These are the qualities sought by the Collegium.

Examined closely, we find it leaves out of consideration the advocates who have put in equal number of years in the judiciary at the district level. The reason for this could be because there has been no occasion to assess the suitability of lawyers practicing at the district level.

This brings us to the next question. If the intent of the Parliament was to allow only those candidates whose advocacy could be vouched for, and the law of the land says such an exercise could only be undertaken by the high court Collegium, not enlarging it to the district judiciary, how can a person outside the judicial circles, who has no competence in the matter, evaluate or assess it? It would be akin to a lawyer being asked to give their opinion on the niceties of a surgery in the medical association, or surgeons assessing the nuances of a dance form.

Hence, I am completely against anyone but judges deciding as to who should be appointed.

Q: What reforms would you suggest in the Collegium system?

A: I have a few suggestions on some tweaks the Collegium system could do with:

1. There must be a timeline for the decision-making process, and each high court should sponsor names well in advance so that there is no vacancy.
2. Appointment of judges should be a routine matter, not a hush-hush affair, or a hot bed of gossip and politics.
3. Once a high court has been given the responsibility of sponsoring names, its wisdom must be trusted or there is a danger of names originating from the Supreme Court Collegium, which would upset the system. We must keep in mind that in our federal system, the judiciary is not a monolith. The high court is an independent block comprising constitutional functionaries not within the administrative control of the Supreme Court. The word of the high court should be final, except in cases where a damning report about a particular candidate is filed at a later stage.
4. Thereafter, the government should necessarily appoint the candidate unless objections are legally tenable.
5. Last but not the least, an advocate who has been sponsored for judgeship should be kept in the loop about the movement of their file. From personal experience, I can tell you that it is very demeaning to hear gossip about the movement of your file. I thought it unfit for the constitutional post that I was to occupy.

Also read: As the SC, Centre play ping-pong over MoP, it is time for the Collegium to step up

Q: Any comments on the Union Law Minister's opinion on transparency and opacity in the judiciary, and the proposal that as elected representatives, the government should have a bigger role in the appointment of judges?

A: I think the first question to ask would be: Why is there an objection? Are we looking for greater control over the appointment of judges or are we looking for better judges to serve the judiciary? I think the concern should be how the best-suited advocates are chosen for the job of judgeship. Everything else should be immaterial.

As for clichéd words like transparency and opacity, I may sound cynical but let me tell you that giving reasons for every decision can never pass the test of transparency. Reasons can be easily given and very legitimate ones for sure too, but whether or not they are honest is the question. We need to fix this and call the bluff.

As to the latest objection of putting reasons for returning some names, ironically, first the government wanted transparency; now when the Supreme Court Collegium has put the objections of the Executive on some names in the public domain, it has a grouse. First, it creates an all-knives-out situation, and then looks for a cake to cut.

Q: What according to you is the biggest challenge for the republic?

A: We seem to have closed ourselves and stopped listening to each other. This is the biggest challenge. We must learn to find solutions together. For this, I would say we need to see ourselves in a historical perspective. We need to learn lessons from times past.

When India's freedom fighters and teachers told us, "Hum layein hain toofan sey kashti nikaal kay, iss desh ko rakhna mere bachchon sambhaal ke" ('We have secured this boat from a storm; keep this country carefully, my children), they wished us to remember their sacrifices, and counselled us to own our nation with its burdens and aspirations. I am especially affected by such songs since they subconsciously made people believe they were capable of being better citizens. They also guided us to periodically do a reality check.

Films like Mother India, Pyaasa, Phir Subha Hogi and so many others were made on this premise. Disappointed people fearlessly sang, "Jinhein naaz hai Hind par woh kahaan hain, zara mulk ke rahbara ko bulao, ye kooche ye galiyaan ye manzar dikhao, jinhein naaz hai Hind par unko lao, jinhein naaz hai Hind par woh kahaan hain." (Where are those who are proud of India, call the leaders of the nation, show them these streets and these sights, get those who are proud of India, where are those who are proud of India.) They indicated that a perfect nation was the only goal and nothing short of it was acceptable. After all, we had a written Constitution guaranteeing equality and dignity to all.

Also read: Every new generation should use Republic Day to reflect upon the Constitution

Q: In the depressing scenario you have painted, where do you see the hope?

A: The hope, in my opinion, lies in the ordinary citizens who, on account of their ordinariness, have remained untouched by the vicious atmosphere. It is they who will show us the way and lead us.

As I look at it, only people who, without any vested interests, raise uncomfortable questions are true nationalists. The rest should then be prepared to see the mirror and work on improvement and a common good. For this, what is a better guide than the Constitution, which works on common denominators.