Since January 2017, the shadow of the Executive has menacingly hovered over the Supreme Court, Sr Adv Anupam Gupta

Aditya AK July 8 2018

Anupam Gupta practises as a Senior Advocate at the High Court of Punjab & Haryana. In this interview with Bar & Bench, he offers his take on the perceived crisis of the Indian Judiciary, touching upon Executive interference with the Judiciary, the Judges Press Conference, the role of the Chief Justice of India as master of roster, and more.

Judiciary in Crisis

The crisis which has gripped the Supreme Court since about a year and a half is nothing less than a tragedy, for the simple reason that it is not an ordinary court. This is the world’s most powerful Apex Court.

Anything which divides the Court or erodes its credibility to stand up to the Executive and to affirm its independence, anything that gives the impression that the Supreme Court is leaning towards the Executive, anything that engenders the perception that the Court has shown a certain weakness and lack of detachment especially in areas where the Executive has a stake must be taken seriously.

Has the Executive always attempted to interfere with the Judiciary?

It has not always been the case. It is tempting to compare it with Indira Gandhi’s regime post 1971. We have a central government headed by a strong leader, having a comfortable majority in Parliament. In that sense, there is a parallel to Narendra Modi’s government, which is battling against the Judiciary, and Mrs. Gandhi’s government.

In between, there was a long period where the political Executive did not enjoy a clean or comfortable majority in Parliament. We had an era of coalition governments, which are not half as strong. The way a coalition government engages with the Judiciary is completely different from how a clear majority government engages with the Judiciary.

Having said that, the distinguishing feature of the present crisis is the very organized and persistent effort by the government of India not only to “stand firm” against the Judiciary on critical matters, but a clear and determined resolve to confront the Judiciary and to attempt to drive it into a corner.

It is a sustained effort from the highest level, with a lot of thought going into it, to gain the upper hand. It has refused to retreat or relent in any way, directly or indirectly, shrinking the space the Judiciary has.

In particular, there is an attempt to gain control over judicial appointments in the Supreme Court and the high courts. The latest example is of the wilful, determined opposition to the elevation of Justice KM Joseph, for no other reason than he is the author of a judgment that struck down the action of the government.

He is perceived to be anti-BJP, and for that reason alone, regardless of the prolixity of the Law Minister’s letter and the reasons offered therein, his elevation has been opposed.

“He [Justice KM Joseph] is perceived to be anti-BJP, and for that reason alone, his elevation has been opposed.”

I agree entirely with Justice RM Lodha and Justice TS Thakur and many others that this exemplifies in a very disturbing way, how the present government wants to deal with the Judiciary. When the Executive acts so strongly, a huge responsibility is cast upon the leadership of the Judiciary, in particular upon the Chief Justice of India.

Not only does he have to be the master of the roster within the Court and assert his independence in relation to the other judges of the Court, he also has to be independent in relation to the world at large. He has to reaffirm the independence of the Supreme Court in the face of this strong, menacing Executive.

I hate to say this as a lawyer, but since January 2017, the shadow of the Executive has menacingly hovered over the Supreme Court, and the Chief Justice of India has not been equal to the challenge.

System of Judicial Appointments

I am not a great admirer of the Collegium system. It is true when the government says that the original intent of the Constituent Assembly was a check and balance system in which neither the Chief Justice of India nor the government of India had a veto. This point was summed up by Dr. BR Ambedkar, in a lengthy paragraph that has fallen for interpretation repeatedly before the Supreme Court.

The reinterpretation of this point by the Supreme Court is not justified. The Constitution has been re-written by interpretation; the Collegium system brought in; and the primacy of the Chief Justice brought in, so that the Judiciary can re-appropriate to itself a power that originally belonged to the Executive. This power still belongs to the Executive in most of the countries in the world, including the United States of America.

While I am not a great admirer of this re-interpretation of the Constitution, the Collegium system has nonetheless come to stay. And I would not like the balance of power to make judicial appointments to shift back from the Judiciary to the Executive, because the Executive would be as subjective and unaccountable as the Judiciary.

Given the strong, ideological Executive with a particular vision for the country and of the Constitution that may not conform to the democratic, liberal perspective of the Constitution, there is a greater danger to public interest of the power to make judicial appointments vesting in the Executive than in the Judiciary.

Essential Religious Practices

“Given the strong, ideological Executive with a particular vision for the country and of the Constitution that may not conform to the democratic, liberal perspective of the Constitution, there is a greater danger to public interest of the power to make judicial appointments vesting in the Executive than in the Judiciary.”

Some of the appointments over the years might throw up serious questions and bring the Collegium under interrogation.

But on principle, having seen the Collegium function through those three judges cases, and keeping in mind the decline in political morality and the level at which institutions are functioning in the country as a whole, I think it would be naïve to have the central government to acquire a veto power over appointments, and for it to be given the final voice in deciding whether Justice Joseph or any other judge should be elevated to the Supreme Court.

Need for clarity on how Judicial Appointments work

The principle of seniority and legitimate expectation was articulated by Justice JS Verma in the majority judgment passed in 1993. The government is not wrong when it refers to that, but that part of the ratio of the judgment is not embodied wisdom per se. It was meant to work as a kind of check against arbitrariness and discrimination, against pick-and-choose, to ensure a certain sequential regularity in appointments of judges and Chief Justices.

Such regularity, in certain cases, may promote only mediocrity rather than excellence. When a Collegium seeks to make an appointment anchored in excellence, and then for the government to raise an objection based on the principle of legitimate expectation, and for us to turn a blind eye to its real motives, would be a tragedy.

Judges Press Conference

I disagree with the criticism against the four judges who held the press conference. I believe that the four judges represent intellectual excellence and unimpeachable integrity. They are men of strong convictions, men espousing a value system. The only thing that binds them together is their seniority.

When four strong individuals from different parts of the country and with different backgrounds come together, the very fact that they found it necessary to express their anguish – in very restrained terms – means they had a good reason to come out in the open.

Holding a press conference is unconventional, but so also is the conduct of the judicial leadership of the Supreme Court since January 2017. It is obvious that I do not speak of the present CJI alone. Since then, the Supreme Court and the CJIs have been seen to be lacking in detachment, courage, and independence, especially on critical occasions affecting the central political Executive.

I strongly believe that it is this impression of the Supreme Court, this weakness towards the Executive, that compelled the four judges to come out.

“Holding a press conference is unconventional, but so also is the conduct of the judicial leadership of the Supreme Court since January 2017.”

This fact has been made clearer in the subsequent letters written by Justice J Chelameswar, Justice Kurian Joseph, and Justices Ranjan Gogoi and Madan Lokur. So, while the CJI has reaffirmed his authority as master of the roster, his independence in relation to the Executive, ever since January 2017, seems to have been eroded.

CJI as Master of Roster

This principle is in one sense, a very practical principle. Someone has to allocate cases. The reliance on the 1998 judgment of the Supreme Court in State of Rajasthan v. Prakash Chand, would be, in one sense, reaffirming the obvious. But to project this as the paramount constitutional principle today is not only carrying things too far, but also mixing power and politics with principle. It is an institutional power, not a personal power.

Impeachment

“It appears that the world’s most powerful court has only one Bench – the Chief Justice’s Bench.”

We have certain constitutional values which cannot be reduced to this simple dictum that the CJI is the master of the roster. The roster cannot be so framed as to transform the entire character of the Court so as to render all the other puisne judges redundant, as it were.

The CJI is definitely the first among equals and has certain privileges incidental to his position, but that it is not to say that the entire Court is reduced to its head and all other can be left virtually without work.

If all cases of significance – and here, quality is more important than quantity – are heard only by the First Bench, then I am afraid an existential crisis has gripped the Supreme Court. It appears that the world’s most powerful court has only one Bench – the Chief Justice’s Bench.

Whatever be the calibre of the judges manning that Bench, it is not the entire Supreme Court. The transmogrification of the Court is contrary to all the fundamental values the founding fathers envisaged for the Constitution.

Impeachment motion was a reaction to the Judge Loya case

The Caravan article was extremely disturbing, but when I read about what the judicial officers accompanying Judge Loya had to say in The Indian Express, my doubts were dispelled. The complete version of those judges is now part of the judicial record.

Whatever be the grievances of the petitioners, I would be substantially satisfied with what the four judicial officers have said, coupled with the professional assessment made by the doctors of the KEM Hospital in Bombay. So, I do not agree with the contentions of the petitioners or any of their distinguished counsel.

Nonetheless, I believe that the Supreme Court and the author of the judgment, Justice DY Chandrachud – for whom I have very high regard as a master of the Constitution – did not have to pass strictures on the lawyers concerned. This was absolutely unnecessary, utterly graceless, and reflect a lack of detachment.

Chandrachud

“Justice DY Chandrachud – for whom I have very high regard as a master of the Constitution – did not have to pass strictures on the lawyers concerned.”

I honestly believe that the impeachment motion was an immediate reaction to the strictures passed against the petitioners and their counsel by the Supreme Court.

So far as the content of the charges is concerned, the language is not very impressive; there is an over-simplification and even a casualness in semantics. It lacks depth and intellectual sophistication, because of lack of time or whatever reason.

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