Powerful Attack on India's System of Corruption Comes from Unlikely Power Center - Its Courts

It has alternately been called a mutiny, a call to conscience, an unconscionable act. When four of India’s Supreme Court judges (a total of 25 sit in 13 benches in this highest court of the land) took the unusual step of addressing ills within the court to the nation’s media, it shook all sections. In this unprecedented move, they challenged the Chief Justice of India (CJI) for alleged nepotism in assigning cases to pre-chosen benches. The press conference was held at the residence of the number two justice, Jasti Chelameswar. The others in attendance were Justices Ranjan Gogoi, Madan Lokur and Kurian Joseph. As the Indian Express reports, “in a letter to Chief Justice of India Dipak Misra [these justices] expressed concern on certain judicial orders passed by the top court which… [have] ‘adversely affected the overall functioning of the justice delivery system.’”


At the press conference, the judges also released a six-page later, one sent to the CJI months earlier expressing these concerns, which still have not been addressed. Essentially, they flagged the issue of how certain cases—crucial to the policies being pushed through by the political establishment, or those critical to its ideology—were being given to certain pre-fixed benches of the court. The issue raised was, who is Master of the Roster? The senior justices have argued that the rules and established practices make the CJI “only the first amongst the equals, nothing more or nothing less.”

It was a dramatic view coming from an institution regarded for its aloofness and austerity, one that has looked at media mongering askance: “‘The four of us are convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country,’ Justice J. Chelameswar said on the lawns of his residence on Friday, January 12.” The judges also made available a letter written by them to the Chief Justice two months ago, alleging “selective assignment of cases to preferred judges” and that “sensitive cases were being allotted to junior judges.

Two days after this dramatic development, four retired judges—one of the Supreme Court and three of High Courts—in an open letter endorsed the concerns addressed in the press conference. Meanwhile, with lawyers associations divided, the Supreme Court Bar Association has urged that matters of public interest at least be assigned to senior members of the court. Overwhelmingly, there is a view that while developments are disturbing and concerns legitimate, the “judiciary should be allowed to sort this out for themselves.

The most immediate prompt for this unusual step was a case involving the death of a junior judge, B.H. Loya, who died in Nagpur in December 2014 while he was hearing the case of extrajudicial killings in which Prime Minister Narendra Modi’s close colleague and today president of his party, Amit Shah, was an accused. One judge before Loya had been unceremoniously transferred away from hearing the case. The judge who came in after Loya died actually discharged Amit Shah from the case. This matter assumed prominence when some allegations of wrongdoing in the death surfaced through a journalistic investigation some months ago, prompting petitions in court urging an impartial inquiry into the judge’s death. While a court in Bombay was hearing the matter, another case (of a similar kind) was moved in the Supreme Court in what is believed to a means to kill the effort.

But it is not just the Loya case that stands marked here. Other crucial cases dealing with mass surveillance and the UID Aadhar, a clutch of petitions related to the right to trade in and eat beef, the long-standing dispute over the Babri Masjid and the Ram temple all are due to be heard in the next few weeks and months. The growing concern has been that not only are these matters being rushed to be heard but that pre-fixed benches are being chosen in many of these matters.

The present Modi regime has had difficult relations with the higher judiciary. Close to two years ago, 15 months after the Modi government was sworn to power, an unholy controversy had arisen over the Modi regime’s open moves to influence India’s Supreme Court through the appointment of a mechanism that would take away the judiciary’s own powers to select judges. Then-attorney general Mukul Rohatgi had made a series of aggressive, even controversial arguments in the Indian Supreme Court arguing for a supremacy of Parliament over the Supreme Court. Finally the Supreme Court had ruled firmly against the decision, staying with the Collegium system of appointing judges, which itself has not been without criticism.

At the time I had published an article, a shorter version of the following, in the Indian Express on July 18, 2015, that is relevant today:

A Judiciary Made to Measure: India

2018 is 43 years after India’s first experience of the Emergency was commemorated. A dark period in independent India’s history, the formal declaration of Emergency was preceded by a period when the government of the day, bit by bit, in a sinister manner, eroded the independence of India’s judiciary. The separation of powers, on which the basic structure of the Indian Constitution squarely rests, is firm in the fundamental formation of both judicial autonomy and independence. It is this judicial integrity, autonomy and independence that are under direct assault and severe threat today.

The tone and tenor employed by current Attorney General Mukul Rohatgi, when he made his arguments in support of the National Judicial Appointment Commission (NJAC), are not only unbefitting of the post, but reflect the downgrading of the position of Attorney General that has been reduced, by successive governments, from a constitutional authority qualified to advise the court on the fundamentals of the Indian Constitution and law (even if this, at time, militates against the act of a particular government), to the reductionist role of a defence counsel, defending the policies and individuals within the government in power at the relevant time.

So, among other things, Rohatgi said, pushing for the NJAC as it stands today, that the Parliament is supreme in our system and even the Supreme Court needs to bow before it.

How inherently wrong this interpretation is. The appointment of judges, their elevation to the highest position, as chief justices of High Courts and the ultimate one of the Chief Justice of India, their transfer among High Courts of the land, all these moves manifest the inherent powers that must be both autonomous and independent. Appointments and transfers cannot be at the behest of any government though in a democracy, the government and the opposition must play a significant role. That the present system requires course correction is true, that the appointment of judges needs to open itself to scrutiny and tests of representation is also valid, but the new path charted must answer to tests of transparency and accountability, not further obfuscate them.

Once before, between 1973 and the actual declaration of Emergency on June 25, 1975, we experienced the brute overreach of executive power, manifest not in just the taking of political prisoners—which included the unholy mix of Communists and Jan Sanghis—but in the actual move to manipulate the Supreme Court, and through it India’s higher judiciary. India saw then the erosion of institutional autonomy that was resorted to, brazenly, by the government of the day.

On 25 April of that year, the government had, in a shocking move, superseded in appointment to the position of the chief justice of India, three senior-most judges, Justices Shelat, Hegde and Grover and appointed Justice Ray. The reaction from the Bar was swift and instantaneous. In Bar Associations across the length and breadth of the country—Bombay, Kolkata, Madras, Chandigarh, Bihar, Allahabad—the outrage was unanimous and expression of it courageous. The chairman of the then Bar Council of India, Ram Jethmalani in an official statement declared it as “the most shocking display of executive arrogance” and six of the country’s eminent jurists, M.C. Setalvad, M.C. Chagla, J.C. Shah, K.T. Desai, V.M. Tarkunde and N.A. Palkhivala, issued a strong statement the very next day condemning the government’s move as “a manifest attempt to undermine the court’s independence.” Through this one act, the prime minister made her intentions of having a ‘committed’ judiciary clear, committed not to law and the Constitution but to the whims of the government.

Over the last two months or so, the country has been witness to the brash and brazen face-off between the present regime in power in Delhi and India’s Supreme Court of India. Within the next few weeks will come a decision from the Supreme Court that will, whichever way it goes, have a lasting impact. There has been little substance and even less grace in the attorney general’s arguments that have bordered on the rude and arrogant. “Parliament is supreme,” he has bellowed, and the court must bow to its supremacy, is one such. That the Supreme Court of India and many of our High Courts face a serious issue of credibility, based on both perception and reality, gives this face-off an even more sinister turn. The regime is riding high on this perception, never mind the fact that it represents a worldview that has in past and present conduct shown scant respect for the protection of our fundamental rights or the Constitution.

Given this complex scenario, it becomes necessary to look close and hard at the present attempt (even crasser than in the 1970s) by the executive to browbeat our judiciary. We need to step back in real memory to the May of 1973, when a historic protest meeting was held in Bombay. Among the galaxy of speakers that addressed the meeting and included M. Hidayatullah, J.C. Shah, C.K. Daphtary, H.V. Iengar, K. Subba Rao and of course, N.A. Palkhivala, the speeches, pithy and substantive, voiced strong dissent against the then-central government’s brazen move. My grandfather, M.C. Setalvad, India’s first Attorney General, was among the speakers. I was 11 at the time.

The speeches were inspiring and erudite. [They were reproduced later into a booklet, A Judiciary Made to Measure, published by N.A. Palkhivala.] Setalvad, who had been both India’s first Attorney General and the chairperson of the first Law Commission, and Palkhivala had both reacted sharply to senior lawyer and union minister M. Kumaramangalam’s speech in Parliament, defending the government’s action. There is a chilling similarity between what was said then and what Rohatgi is saying today.

Kumaramangalam, justifying the central government’s actions, said that since Parliament was supreme in the Indian scheme of things, it was but natural that when it comes to the appointment of the Chief Justice, the government of the day will select a person who shall uphold the government’s view of the Constitution! Setalvad critiqued this interpretation as partisan and misguided since this meant that the government was bound to uphold not the philosophy in fact underlying the Constitution but a particular government (and by that logic, a particular party’s) understanding of that philosophy. 

Setalvad said:

“We all know that when a judge takes office, including the Chief Justice, he takes on oath of office and his oath pledges him, among other things, to decide cases in accordance with the Constitution. Now if he looks at the Constitution and feels that its interpretation, is according to him, in a particular direction or it has a particular meaning, he has not to give that direction or meaning to the words of the Constitution. He has to apply to the words of the Constitution, contrary to his own understanding, the philosophy of the Government. Let us analyse what the philosophy of the Government would, in ordinary practice, mean. The philosophy of the Government would mean the philosophy of the ruling party. Today it may be the philosophy of the ruling Congress, tomorrow it may be the philosophy of another party-it may be the Jan Sangh, it may be the Swatantra. Therefore, the judge or the Chief Justice has to keep track, when he is sitting on the Bench, in interpreting the Constitution, not of the language and the words of the Constitution, but of the philosophy of the ruling party which may change from time to time....”

What could be the consequences of such a move? According to Setalvad:

“So, you have not to have an impartial Chief Justice but a judge or a Chief Justice who will bear in mind what, in effect, the Government thinks the Constitution means. ... And the mischief does not end there. It goes further. Though the observations which were made in the Lok Sabha by Mr. Kumaramangalam refer to the office of the Chief Justice, they would apply all the way down to all judicial appointments. Every judge of the Supreme Court when making a decision in which Government policy is in question will have to think of his prospects of being appointed the Chief Justice and bear in mind what the philosophy of the Government of the day is, if he wants to be in good favour with the Government of the day is, if he wants to be in good favour with the Government in order to earn his appointment as the Chief Justice. Nay, it will travel down further. Take the judges of the High Court. Naturally and rightly they all aspire, as soon as they grow senior, to be selected for the highest Court in the land. But they must bear in mind that in order to be so selected they must also interpret the Constitution, not as they think it requires to be interpreted, but according to the philosophy of the Government in power at the centre for the time being.”

As chair of India’s first law commission, M.C. Setalvad had with others also recommended that there should a severe restriction on post-retirement postings for judges of the higher courts.

Succinctly arguing against the “preeminence of Parliament over the court argument,” N.A. Palkhivala, India’s preeminent jurist, had said at the same historic meeting held in Bombay that:

“….Mr. Kumaramangalam has argued that the Government wants a Chief Justice who is able to recognize that Parliament is sovereign; that Parliament’s powers in relation to the future are sovereign powers....This ability required of the Chief Justice makes a mockery of the Constitution. Parliament has no unfettered sovereignty. The Constitution is supreme over Parliament; and not Parliament over the Constitution. The fundamental rights which are the basic human freedoms are fetters on Parliament’s powers. The Supreme Court has itself held by a majority in the great Constitutional case decided on April 24, 1973, that Parliament has no power to amend the Constitution in such a way as to alter the basic structure or framework of the Constitution; and the Government’s emphatic arguments to the contrary were expressly rejected. Mr. Kumaramangalam’s statement amounts to a refusal to accept the law as laid down by the Supreme Court.”

When we look back at those dark days of authoritarian rule, the atrocities at Turkman Gate etc., the silver linings in the cloud are the audible protests from across the Bar. Today, when we await a verdict on which the future of India could hinge, a studied silence prevails. Faced with a regime defined by its credo of vendetta-driven governance, the India that was built on the wisdom of men and women who had through sweat, principles and toil fought against a colonial oppressor, today needs to give voice to a spirited resistance that reaffirms our fundamentals.

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