THE BAR RISES: Public Meeting on ‘Independence of Judiciary’ and Implications for Democracy: A Report

Held on 23 March, 2018, the programme saw a number of senior members of the legal community come together and raise their voice on one of the most pressing issues of our times.

A cry for help was sounded by a band of the four senior most brother judges of the Supreme Court of India – excluding the Chief Justice – on January 12 of this year. It was “history in the making”, as some have observed. The four justices – Jasti Chelameswar, Ranjan Gogoi, Kurien Joseph and Madan Lokur – as a last resort, called an impromptu press conference on that sunny winter day and tried lifting the deadly haze that had dawned on the corridors of the highest judicial bodies in the country, not excluding the Supreme Court.

The four brother judges handed out a letter dated November 6, 2017, that they had written to the Chief Justice of India, Dipak Misra, alerting him to the problems in the manner benches of the Supreme Court were being assigned, without following due process. Certain benches, it was pointed out, were getting to hear most of the crucial matters of national and constitutional significance. This preferential assignment of benches, they hinted, was a breach of the independence of the judiciary. They appealed that they were “discharging their debt to the nation” and the “20 years from now, people shouldn’t say that we have sold our souls”.

The four Justices made it to the frontpage of most national dalies, and their plea found both supporters and detractors in the corridors of the courts. However, there was a stunned silence from the corners that should have been the most vocal in their support of the four judges, all of whom put their careers and reputation at stake to blow the whistle on the goings-on inside the hallowed courtrooms of the country. The inability of the Supreme Court Bar Association and the Bar Council of India to issue independent statements taking into cognizance the staggering scale of the event that unfolded before their eyes was found to be disheartening, to say the least, by those to decided they must asnswer the clarion call sounded by the four judges.

It was precisely to prevent the historic press conference from becoming an ignored plea, a footnote in the history of India’s ongoing descent into undemocracy that the public meeting on the “Independence of the Judiciary” and its “Implications on Democracy” was organised by those willing to stick their neck out. Organised by Lawyers Forum for Democracy and Justice, in collaboration with Lawyers Collective, the first open house public meeting to answer the call by the four judges was held on March 23, 2018.

The issues that were discussed and commented upon, openly for the very first time, were the interconnected subjects of judicial independence, appointment of judges, mechanism to addresscomplaints against judges and reform of the roster system. Each of these issues were hinted at by the four judges in their historic press conference, which was both hailed for its matchless courage and panned for “tarnishing the image of the Supreme Court”. Elsewhere, the present ASG Pinky Anand had commented the the Supreme Court was “incorruptible”, while former ASG and senior advocate Indira Jaising, who coordinated the public meeting, had aired her counter view that the “Supreme Court was sitting on an active volcano”.

The public meeting on the “Independence of the Judiciary” saw many of these thorny yet unavoidable issues being discussed at length by many eminent members of the legal profression, including senior advocates Indira Jaising, KK Manan, Ashok Arora, Vrinda Grover, Professor Mohan Gopal, Indira Unninayar, former ADJ Sangeeta Madan, legal journalist Maneesh Chibber as well as former ASG and senior advocate Biswajit Bhattacharya.

Read on to know what they said.

Indira Jaising

Senior Advocate Indira Jaising took upon herself to fight against corruption within judiciary when she exposed Justice Ramaswamy in 1989, and represented a then ADJ alleging sexual harassment against a Madhya Pradesh High Court judge. Jaising also won significant cases representing victims alleging sexual harassment against powerful individuals such as former DGP of Punjab, KPS Gill.

She began her address to this meeting by acknowledging the presence of district court lawyers in the audience, who she believes are the people who would stand up of for the independence of the judiciary and not the “Senior Advocates who line their pockets with money per appearance”.

She, in very strong words, which she is known for, addressed the open conference and said the judiciary wouldn’t collapse if the Bar didn’t collapse. She said the judiciary could only collapse if it wanted to, from within.   She clarified that the purpose of hosting the meeting was to mobilize and alert lawyers to the dangers that lie ahead in the next two years. The question of who would be the next Chief Justice of India was raised in the meeting, considering Justice Ranjan Gogoi who is next in line, was one among the four judges who reached out to the public in a press conference on January 12, 2018.

She, witness to that press conference, said it was “history in the making”, and was shocked at the lack of lawyers present and supporting the judges. She consistently mentioned that the senior lawyers were not standing up and appealed to the members of the legal community present not to be “chamchas” of the Judges.

True to her cause, she called the judiciary a “hereditary institution” and it is well known that there is a pattern of sons (not even daughters) getting elected as judges.

She called for independence of the Bar and a strong culture of ethics by keeping distance from the Judges if independence of the judiciary was the goal. She also called for an objective criteria for selection of judges and prior scrutiny before appointments.

She specifically mentioned SC/AT Tribe (Prevention of Atrocities) Act, 1989 and the recent attempts to convert it into an Act to “protect the upper castes”. She raised the important issue of two upper caste judges reversing the whole mandate of the Act, and it was telling that India didn’t have any SC/ST judges in the Supreme Court.

She received public applause and approval when she raised the question: “How is it that only women, SC/AT misuse the law, and never the Ambanis and Adanis and Nirav Modis?”

She invited many more senior advocates and academicians to speak up and said that the mandate of the public meeting was to “support the four judges”, and demand that warrant of appointment should be issued to senior advocate Indu Malhotra and Justice Kurein Joseph.

Unambiguously congratulating the four judges who came out and alerted the nation, and quoting Justice Gogoi’s words that they have “discharged a debt to the Nation”, she said that it was now “our turn to discharge our duty”.

She concluded her moving remarks by naming her heroes of the 21st century, which she said were Edward Snowden – for alerting the world of the dangers of the United States-led global surveillance, Christopher Wylie – the young man who blew the lid on Cambridge Analytica and its role in US elections and the Brexit vote, and the four SC judges who alerted the Nation that “democracy was in danger”. Jaising declared emphatically that the honest and ethical insiders, the whistle-blowers, are the true heroes of our times.

KK Manan

KK Manan, a senior advocate in the High Court of Delhi, addressed the public meeting on 23 March. He was elected as the Chairman of the Bar Council of Delhi twice, from 2007 to 2008, and then from 2014 to 2016 and previously served as the Standing Counsel at the Delhi High Court from 1990 to 1992. From 2011 to 2014, he served as the Additional Advocate General at the Punjab and Haryana High Court.

At the meeting Mr. Manan discussed the issue of nepotism in the judiciary, comparing it to the Hindi film industry. “More than 135 Crore people in this country; 85,000 lawyers in Delhi, and out of the 10 names gone to the Delhi High Court for appointment as judges, 2 are sons of judges,” said Mr. Manan.

He elaborated on the meaning of ‘independence of judiciary’ as given in the Constitution as being the freedom of encroachment from other organs, i.e. separation of powers. It also meant freedom from interference by legislature, although legislature can in some respects override the decisions of the judiciary via legislations.

He highlighted the role of the Supreme Court as a watchdog of democracy which is meant to preserve the fundamental rights of every citizen given to him/her under the Constitution.

Mohan Gopal

Professor Mohan Gopal, a highly respected figure on the subject of judicial reforms, spoke on the evolution of judicial independence as a concept free from monarchy and nurtured by democracy. He highlighted that judicial independence is a political construct, created by democratic movements in the United States and other countries. He noted that in the current form of the democracy, it is not possible for even Donald Trump to openly claim that he wants to influence the judiciary. This development has been possible because of the political movements and not just the laws in force, which transformed public opinion and created safeguards for the judiciary.

Professor Gopal commented that the meeting should be discussing the implications of democracy on the independence of the judiciary and perhaps not vice versa. He stated that democracy is the mother of Independence of judiciary.

He strongly commented that when four judges of the highest court, come forward and are known to be of exceptional integrity, competence and do not seek the spot light, the message delivered by them is apocalyptic in nature and the public must acknowledge that the Judiciary is compromised. He poetically compared witnessing the historical event to witnessing the Last Supper. He called Justice Gogoi, one of the four judges who held the press conference, as the hero-est of them all, and placed him on the same standard of integrity as Justice HR Khanna.

He explained that the Independence of the judiciary is directly linked to the idea of rule of law. He explained that rule of law is not a formality but linked with judicial independence which brings commitment to fundament rights.

He pointed to the gravity of the situation, saying: “If in England, a dictator took power he will first shut down the parliament, (not required in India), then he will shut down the judiciary)”.

Prof. Gopal carefully warned the audience of lawyers, students and academics, that the four judges reaching out to appeal to the public should have been enough to alert us to the threat to the national security. If this threat is not taken seriously, then other threats that the Government is claiming are not real threats. He said that it is shocking that the judiciary, executive, media is refusing to respond to a genuine threat such as this.

He concluded by sharing an interesting legal development similar to the press conference of the four judges. Recently, a woman judge in the UK, approached employment tribunal claiming protection under the Whistleblowers Act, because she had openly criticized the judiciary. Employment tribunal said that she is not a “worker” as per the Act, but on further appeal to the Court it was accepted that she will be protected as a whistleblower, not under the Act, but she will get compensation in case of any retaliation. Professor Gopal suggested that the four judges have now expanded the scope of the whistle blowers in our country as well. The power of insiders speaking out is extremely important for democracy and Judges should be given the status of whistle blowers and protection against exposing any threat to the security of the country.

Bishwajit Bhattacharya

Bishwajit Bhattacharya, senior advocate and former Additional Solicitor General of India, was among the first petitioners to challenge the constitutional validity of the National Judicial Appointment Commission (NJAC).

He began his impassioned speech by stating that when four seniormost judges of the Supreme Court, including the next incumbent Chief Justice of India, make a statement that they are discharging the debt of obligation to the nation so that the posterity does not allege that they sold their souls, it is to be understood as the biggest threat to democracy. He stressed on the need to be eternally vigilant.

He disagreed with Mr. Manan’s statement that the collegium has failed us, and stated that the collegium system may not have worked satisfactorily but it was far better than hijacking the judiciary.

He stated that the judiciary has been crippled and needs to be protected as the last bastion of hope for the people.

Maneesh Chhibber

Maneesh Chhibber is a respected and senior journalist specialsing in legal affairs and investigative stories. He is now the Editor, Investigations and Special Projects, at The Print, a well known news and opinion portal founded by renowned journalist Shekhar Gupta, former editor-in-chief of The Indian Express.

His speech focused on IB reports and how they have been ‘managed’ and ‘amended’ by pressure from the governement. He spoke openly of his knowledge of Judges who have negative IB reports against them getting appointed as judges of High Courts.

He questioned the non-elevation of of Uttarakhand High Court Chief Justice KM Joseph, who had quashed the President’s Rule in the state in 2016, and senior counsel Indu Malhotra as Supreme Court judges.

“Would it be moral if the government chooses to interrupt Justice Gogoi’s appointment as the next CJI on technical grounds…for some unimportant, unfounded allegation..” asked the journalist.

Sangeeta Madan

Sangeeta Madan, former Additional District Judge in Madhya Pradesh practicing lawyers in Delhi for 15 years, addressed the audience with her personal story of resignation on 14 July, 2014, in light of her complaint of sexual harassment faced against Justice S K Gangele.

He highlighted the flaws in the system of removal proceedings, under Article 124 and 217 of the Constitution of India. She identified that when a Judge in under inquiry, he continues to have the upper hand because of the power he continues to exercise as a judge in both judicial and administrative capacity.

“He is enquired by a brother judge, belonging to the same family judiciary.” she said.

She also highlighted that the in-house proceedings undertaken behind closed doors was beneficial to the perpetrator. “Where is the mechanism that keeps check of the proceedings of the in-house enquiry whether they are following principles of natural justice,” she asked.

Vrinda Grover

Advocate Vrinda Grover, emphasized on the ideologies which are necessary for an independent judiciary. She said that the ideologies that reflect in the Oath of office that the judges take before entering office should be free from upper-caste brahmin ideologies, patriarchal ideologies and any communal, non-secular ideologies.

She said that independence of the judiciary is not only a matter of corruption, selection but if we want to transform the nature of democracy then it has to include a plural perspectives and ideologies. Following that, she saluted the four judges and expressed support for what they have done for the country by speaking out.

“There is an issue when the impunity of the executive is not curbed by the Supreme Court. The executive has tasted blood”.

She concluded that when we raise the issue of independence of judiciary we must emphasize the importance of allegiance to the constitutional ideology.

Indira Unninayar

Indira Unninayar, an activist and lawyer practicing in Delhi and also a trained mediator at the Delhi High Court Mediation Centre, addressed the meeting on Friday. She has worked on and filed Public Interest Litigations on the right to freedom of speech and expression challenging films bans, the right to livelihood, the right to dignity in pursing one’s occupation, the right to justice, the right to shelter and the right to health.

She addressed the meeting, stating that it was about time that someone from within the judiciary came out and spoke out against what has been happening within the judiciary, referring to the conference of the four senior-most judges.

She talked about specific instances where there was misconduct on the part of the judges, showing the glaring problems with the lack of accountability in the judiciary.

She also stated that there was an inherent problem of independence in the judiciary in cases where the government is a party, if you have the judge who is adjudicating the case is someone who is closely affiliated to the government.

She proposed an appointment system which is not the NJAC and not the collegium, but an independent body which can appoint judges. This body shall also entail a complaint-addressing mechanism, whereby a complainant can reach out in cases of minor day-to-day complaints also not only massive cases of corruption.

Ashok Arora

Ashok Arora, former secretary of Supreme Court Bar Association, spoke about the importance of an independent judiciary in a democracy. While acknowledging the significance of Bhagat Singh Martyr Day he spoke about the true meaning of independence, as freedom from the shackles of an authoritarian government.