Looking back, four years after Narendra Modi was sworn in as Prime Minister of India on the back of a historic majority in the Lok Sabha, one incident early on in his tenure in 2014 clearly set the tone for the interaction between the judiciary and the executive in the years to come.
Bad Faith & Underhanded Tactics
Senior Advocate Gopal Subramaniam had been recommended for elevation to the Supreme Court by the collegium headed by the then Chief Justice of India, RM Lodha. The court had broken for vacation and the judges were travelling, when a surprising set of news reports emerged – the Intelligence Bureau report on Subramaniam had been leaked with some very uncharitable observations and comments about him.
The government feigned ignorance, Subramaniam took offence and withdrew his nomination.
The government had “borked” Subramaniam’s nomination, it was believed, as he had been a Solicitor General in the previous UPA regime, been amicus curiae in the Sohrabuddin Sheikh case, and therefore, unlikely to be sympathetic to the Narendra Modi-led government.
The whole thing reeked of bad faith, of a government using underhanded tactics to get its way instead of reasoned debate and discussion. The episode perhaps played no small part in how the constitutional validity of the National Judicial Accountability Commission was decided by the Supreme Court.
Bad faith has been alleged in at least three other instances of appointments and transfers since. Justice MR Shah of the Gujarat High Court and Justice Valmiki Mehta of the Delhi High Court were supposed to be transferred to the Madhya Pradesh High Court and the Gujarat High Court respectively.
The collegium had forwarded the recommendations to the Union Government. The transfers never happened. Not because there was some rethink of the underlying grounds for such transfers – the government just refused to process the files.
Instead of pressing the government to do so, the collegium headed by CJI JS Khehar meekly withdrew the recommendations. Far from engaging on any debate or discussion about the merits of the move, the manner in which the government stalled the transfer suggested less-than-pure motives behind it all.
This Government Too Wants a ‘Loyal Judiciary’
Judges who have taken an independent stand against the government also seem to have borne the brunt of its bad faith. The examples of Justice Jayant M Patel and Justice KM Joseph are well known.
To recap, the former would have retired as Chief Justice of Karnataka if not for a transfer, which would have ensured that he would never become a Chief Justice of a High Court.
That he was also the judge who ordered the CBI investigation into the Sohrabuddin Sheikh case was not unnoticed. That the collegium offered no explanation as to why a judge, with an otherwise clean record and universally respected in both Karnataka and Gujarat, was being punishment-transferred, did not help.
Justice Joseph’s saga is ongoing. The Union Government refused to process the elevation from the Uttarakhand High Court to the Supreme Court for months and then sent it back on the somewhat specious grounds of “seniority” and “representation”.
The validity of the grounds aside, it was the government asserting, in the teeth of the law settled in the second and third judges’ cases, that it had the right to determine the suitability of judges for the Supreme Court.
That Justice Joseph stopped the Centre’s attempt to engineer defections and bring down the Uttarakhand government in 2016 has also not gone unnoticed.
Ostensibly, all these decisions were taken by the collegium. Yet it is hard to believe that these decisions were informed purely by judicial concerns. A divided collegium (with CJI Dipak Misra seemingly on one side and everyone else on the other) has been unable to conclusively reiterate Justice Joseph’s name while repeatedly stressing its intent to do so. Its continuing failure to do so sends out a message to all high court judges who stand up to the government – ‘we won’t stand up for you’.
Lack of Transparency Will Harm the Judiciary
The Narendra Modi government’s attitude toward the judiciary is not so very different from the Indira Gandhi government’s.
The only difference is that while the Indira Gandhi government said it wanted a judiciary committed to the ruling party’s ideology, the present government at least pays lip service to the notion of independence of the judiciary even if it acts quite otherwise. The interference seems less based on ideology and more on the petty settling of scores with those who’ve just done their duties.
What is worrisome is not the government’s approach to the judiciary. It would be hard to find a government in Indian history (even in the British Raj!) which had a perfectly harmonious relationship with the judiciary in every respect.
What is however troubling is the institutional weaknesses in the judiciary that have been massively exposed in these conflicts.
The collegium’s lack of transparency and efficiency has meant that it has not been able to effectively counter the government’s attempts to subvert it. Following the widespread condemnation over the transfer of Jayant Patel, the collegium at least started putting out minutes of the meetings and even mentioning reasons for non-elevation to the High Courts and the Supreme Courts.
Though far from the ideal of transparency with which such a body is supposed to operate, this is a small beginning and perhaps a tacit acknowledgement that lack of transparency harms the institution itself.
The Judicial Crisis 20 Years in the Making
The perception that the CJI was not sufficiently safeguarding the judiciary’s interests against the executive, or worse, actively harming it by allowing executive interference, was what prompted the four judges to hold the press conference in January this year. Though the government did not actively come forth to take sides on the matter, the tone of social media posts of the government’s supporters suggested where their sympathies lay.
The allegations in the letter released to the public by the four judges make no bones about what they accuse of Misra of – “fixing” benches to ensure a certain outcome, especially in cases which the government was interested in.
The case which sparked this off – the inquiry into Judge Loya’s death – was closed by a bench headed by Misra in a most unsatisfactory manner.
The judiciary in India is under greater scrutiny than ever before. Whether it be in terms of the increasing demand for live-streaming of court proceedings, or in greater transparency in the appointment process, the general public is no longer satisfied with a judiciary which demands transparency from everybody but itself.
It is only right that a constitutional authority which plays a far greater role in the day-to-day lives of Indians than was believed possible, subjects itself it to the required levels of openness and fairness in procedure that is expected.
To say that the judiciary as a whole is suffering an institutional crisis at the moment is perhaps to understate things. But, we shouldn’t be hasty to attribute linear causes to it.
This crisis has been in the making for two decades now, and perhaps the pressure brought to bear by the Narendra Modi government is only the proximate cause. Understanding the proximate cause must not blind us to the weaknesses in the system which have been exploited.
If nothing else, the last four years have only heightened the need to strengthen the judiciary internally to withstand the external challenges that it is going to face.
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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