Pamela Philipose

| @ | June 11,2018

The famed three pillars of democracy — the legislature, the executive and the judiciary — appear today to be in a state of acute disrepair. As for the so-called fourth pillar, the independent media, the less said about it, the better. This structure upon which our fragile democracy rests has over the seven decades after independence been buffeted by the corrosive winds of power, ground down by the salty seas of mendacity, shaken by seismic shocks of political aggrandizement.

Even as we recognise that the assault on democracy’s pillars pre-dates the present moment — and certainly the declaration of emergency in 1975 was a major blow — the last four years together have marked something of a watershed in this process of subversion. It could be argued that never in the history of the country had any political regime displayed as much of an ambition to undermine constitutional conventions, ignore well established norms of democratic practice and seek to concentrate power in its hands in quite as targeted and aggregated a manner as does the present one.

Let us then briefly consider how this process of political control and centralisation played out in the context of the judiciary in a rather fateful interregnum bookended by the passage of the National Judicial Appointments Commission Bill in August 2014 and the unprecedented press conference held on January 12, 2018 by four of the senior-most judges of the Supreme Court to signal their anxiety over the credibility of the judiciary.

Rising executive interference

In a nutshell, the story of these four years was about the executive’s bid to control judicial functioning, and the judiciary’s pushback. This was the master narrative and it had six distinct elements.

The first was the manner in which the former solicitor-general, Gopal Subramanium, was forced to withdraw his candidacy for a Supreme Court judgeship a month after the new government was sworn in. What is interesting here is not just the outcome but the manner in which it was achieved through the discreet leaking of a barrage of innuendo and speculation about Subramanium’s probity, to an eager, even tutored, media from supposedly credible intelligence sources. Although not an official word on the issue emerged from the corridors of power, the intent of the new government to ensure that its writ ran in terms of judicial appointments was quietly signaled.

Any lingering doubt on this was removed a couple of months later, when the National Judicial Appointments Commission Bill (NJAC Bill) — which sought to replace the collegium and allow the executive a role in judicial appointments — became the law of the land in August 2014, after being passed by both Houses of Parliament. Until this point, misgivings between the judiciary and executive were largely subterranean. On the surface there was cordiality, reflected most conspicuously in the then Chief Justice H L Dattu’s public acknowledgement in January 2015 that the prime minister was a “good leader”. The prime minister too had an occasional word of warmth. He would, for instance, observe that the executive and judiciary are like members of the same family and should work to strengthen and support each other.

 

NJAC Act and challenge

It was as the hearings on a petition seeking to strike down the NJAC Act that differences between the two entities became more manifest. The government made no bones about its strong commitment to the NJAC legislation with the then Attorney General Mukul Rohatgi famously observing that the collegium is dead and it cannot (read, should not) be revived by the judiciary. This takes us to the second element of this story: how the striking down of NJAC legislation in October 2015 by a five-judge Constitution Bench, headed by Justice J S Khehar, brought into the open the underlying tensions between judiciary and executive.

The tussle then continued to play out but in another form, which brings us to the third element: the lack of consensus over a new Memorandum of Procedure (MoP) drafted by the government to replace the 1998 version. This, the Supreme Court had acknowledged, was necessary to address accusations on the part of the government and civil society that the collegium’s procedures while making judicial recommendations appeared arbitrary and lacking in transparency. In March 2016, the apex court sent back the government-drafted MoP, seeking revisions of certain clauses that it perceived as undermining its independence, including one that allowed the executive the power to reject any recommendation of the collegium on the basis of the candidate being a threat to national security. The MoP matter remains unresolved to this day and it appears that the executive is waiting for a new collegium to be in place, before exploring the options before it.

 

Delay in acting on Collegium recommendations

The strategy the government adopted in response to its failure to push through the NJAC Act and its version of the MoP, was to consciously delay action on the collegium’s recommendations — which constitutes the fourth dimension of this internecine conflict. Nothing captured the frustration of the apex court over this issue more than the tearful appeal of Justice T S Thakur, who was then the CJI, to the prime minister during a judicial conference in April 2016. He had observed that while the country needed 40,000-odd judges, it had only 7,675 at that point of time, adding, “I beseech you to rise to the occasion and realise that it is not enough to criticise. You cannot shift the entire burden to judiciary.”

As interesting as the CJI words on that occasion was the response of Prime Minister Modi. He suggested that the matter could be solved by senior SC judges sitting with top ministers to find a solution to the problem. This, in other words, was just a reiteration that the executive had a primary role in making judicial appointments. The government also continued to claim that it has appointed a “record” number of High Court judges.

 

Benches of preference

There are two further aspects to the master narrative that need consideration here. The first concerned the patina of suspicion that lingered on the manner the present Chief Justice of India had sought to control the benches appointed to hear cases, some of which were extremely sensitive and impacted the interests of the government directly. The implication of this is as profound as it is disturbing: Could the long arm of the executive have found its way into the apex court despite the innumerable face-offs between the judiciary and the government? Could it be that despite the rejection of the government-drafted NJAC legislation and the freezing of the government version of the MoP, the executive had gone ahead and found a way to control the judiciary? It was this that led four of the most senior judges of the Supreme Court to state in unison that unless the integrity of the judiciary is preserved “democracy can’t be protected in this country” during their historic press conference early this year.

The I-word figured for the first time in that press conference. When asked whether the impeachment of the present chief justice was warranted, Justice Jasti Chelameswar responded, “Let the nation decide that.” In the event, it was some senior members of the opposition Congress party who decided to go ahead with an impeachment motion that immediately set in motion a cat-and-mouse game between the opposition and the ruling party, with the latter successfully stymieing the move, at least for the moment. Here too the role the CJI played in constituting a five-judge bench to hear a matter that implicated him directly was extremely disquieting.

 

Blocking Justice Joseph’s appointment to SC

The second aspect was of course the deliberate manner in which the executive chose to block one of the two names that the collegium had proposed as candidates for Supreme Court judgeships. Despite a strenuous governmental avowal that its decision was guided by the highest principles, it was obvious that the independent way in Justice K M Joseph as Chief Justice of Uttarakhand had overturned the central government’s imposition of President’s Rule in the state in 2016, was the factor that most weighed against his candidature in the eyes of the executive.

 

Emergency 2.0?

Future generations would regard the period just outlined as one that saw a replay of the worst elements of the Emergency, including the attempts at executive capture of the judiciary. Such capture has extremely worrying implications for Indian democracy, particularly since — as information rights activists have pointed out — an extremely high number of cases that come before the judiciary involves the government.

All this has only proved the wisdom of Dr B R Ambedkar when he commented during the Constituent Assembly debate on the appointment of judges to the Supreme Court, “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself, and the question is how these two objects could be secured.”

Today, what is patently clear is that neither of the two objects has been secured. If the judiciary continues to struggle to establish its independence vis-`a-vis the executive, it has often also failed to establish its competence “in itself”.

 

 

 

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