Sunday spotlight: Supremacy of judiciary must

Freedom at stake: from judges' selection to CJI impeachment, govt is in confrontation mode

Silence is an eloquent argument,” thus spoke Chief Justice of India Dipak Misra on Friday in a function organised to bid farewell to Justice R K Agrawal. Justice Misra, after assuming the charge as Chief Justice of India (CJI), saw a phase which would be described as tumultuous in the history of the judiciary. Not only did he face challenges internally, he has to deal with a government led by a party which came to power riding on a huge majority after 30 years at the Centre.

The Narendra Modi government’s first brush with judiciary started when it made an abortive bid for a massive overhaul in judges’ appointment process by passing the National Judicial Accountability Commission Act and the 99th Constitutional Amendment Act in 2015. A five-judge Constitution bench, however, quashed the Act, which mooted a judicial appointment commission, in place of the Collegium of CJI and four seniormost judges, describing it as a threat to the independence of the judiciary. But the Memorandum of Procedure (MoP), that was to be formulated by the Union government, is pending since December 2015. Since then three chief justices have retired but there is no final word as yet on the subject.

Though the appointment of judges was never held back in the interregnum in the absence of MoP, there were several instances which gave a clear-cut message that the judiciary is reeling under pressure from the executive. Though at times, the judiciary tried to assert itself, resulting in a tussle between the two organs. This became all the more clear when the Union government last month decided to send back the file on the elevation of Justice K M Joseph, the chief justice of the Uttarakhand High Court, to the Collegium for reconsideration.

After senior advocate Gopal Subramanium episode, this is another brazen move, when the government apparently proclaimed its authority by asking the Collegium to reconsider Justice Joseph’s recommendation. The government, thus, segregated Justice Joseph’s name from another recommendation, Justice Indu Malhotra. It has affected the line of succession, order and seniority even if the Collegium decides in future to reiterate his name for elevation. The grounds taken by the government included seniority of other eligible judges and non-representation to all regions in the Supreme Court.

A belated decision by the government immediately spurred criticism from activist-lawyers, bar members and former judges, who saw an obvious challenge to the principle of judicial independence and authority of the Collegium. They saw it as a vindictive government trying to scuttle Justice Joseph’s fair chance just because he had in 2016 quashed the President’s rule in Uttarakhand, leading to the revival of Harish Rawat-led Congress government in the hill state.

Earlier, the government did not act at all on the Collegium’s recommendation to transfer him to the High Court of Judicature at Hyderabad for the states of Andhra Pradesh and Telangana. This time, as the government’s decision came more than three months after the Collegium’s recommendation, is also another hint that it is ready to take on the judiciary even if it turns out to be a direct confrontation. The government, for its part, maintained that Justice Joseph’s judgement had got nothing to do with its stand. Was the Collegium swayed by Justice Joseph’s judgement in a political matter and thus ignored 11 chief justices senior to him? The government has also pointed out that he was at number 42 in the seniority list.

As the events unfolded thereafter, it was expected that the Collegium would reiterate the name of Justice Joseph. But for now, this was not to be. The Collegium led by CJI and comprising four seniormost judges, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, met on May 2 but deferred their decision.

The two letters sent by the Law Ministry on April 26 and 30 raised the issue of considering other high court judges on the ground that they were senior to Justice Joseph. Since the strength of judges has been reduced to 24 against the sanctioned number of 31 after the retirement of Justice Agrawal on May 4, the Collegium in its agenda took up the names of judges from Calcutta, Rajasthan and Telangana and Andhra Pradesh High Courts. But no decision, for now, has been taken, giving rise to all sorts of speculations.

The CJI, in the meantime, suffered personal attacks from brother judges and activists lawyers. Four judges going public to ventilate their grievances – on the allocation of cases - reflected the very dismal state of affairs in the top judiciary. It also eroded to a great extent the credibility of the office of the CJI. Though Justice Misra, for his part, subsequently released roster giving a semblance of fairness, equitable distribution of cases of national importance still remained a far cry. The manner in which the cases on medical scam and death of Judge B H Loya was dealt with gave adequate ammunition to the Opposition leaders as well as former judges and activists lawyers to cry foul.

The Opposition parties brought in the impeachment motion against the CJI. But within days, Rajya Sabha Chairman Venkaiah Naidu rejected it, which was again questioned as an unfair decision since allegations could not be examined by a committee as per the mandate of the Judges (Inquiry) Act.

As the situation stands today, emergent steps are required to be taken on the part of the CJI, being the head of the judiciary, and the government to restore the faith of the people. The CJI must involve other judges in the decision-making process on the administrative side, particularly in allocating cases. The government, for its part, must shorten the time lag in processing the files pertaining to judges appointment. Further delay in appointment of judges to vacant posts in high courts and the Supreme Court would frustrate the constitutional ideals and belie the hope and trust of the people in general and litigants in particular who look towards the constitutional courts for justice and protection of their fundamental rights.

The Collegium as laid down in the SC Advocates-on-Record Association and others Vs Union of India (1993) that the process of appointment of judges must start at least one month before the anticipated vacancy. It should also make a recommendation on particular judges along with all supporting materials to obliterate any chance of the government putting a question mark and calling them as random selections. One cannot deny the fact that the history of our judiciary is replete with instances where many judges suffered in silence due to the arbitrary decisions taken by the Collegium.