Bonhomie between Judiciary and Government sounds the death knell to Democracy; Chelameswar J in letter to CJI [Read Letter]

Aditya AK March 29 2018

An unprecedented turn of events a couple of months ago saw four Supreme Court judges bring to light the schism among judges of the apex court, leading us to believe that all is not well with the highest court in the country.

And now, Justice Jasti Chelameswar – one of the four judges who held the Press Conference in January – has revealed another instance of another issue that meddles with the functioning of the judiciary – Executive influence.

In a letter addressed to Chief Justice of India Dipak Misra last week, Justice Chelameswar has protested the manner in which an elevation to the Karnataka High Court was interfered with by the government. Chelameswar J’s strongly worded letter, a copy of which is in the possession of Bar & Bench, states,

“We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive’s incremental encroachment. The Executive is always impatient, and brooks no disobedience even of the judiciary if it can. Attempts were always made to treat the Chief Justices as the Departmental Heads in the Secretariat. So much for our “independence and preeminence” as a distinct State organ.”

He then goes on to reveal how Chief Justice of the Karnataka High Court Dinesh Maheshwari was contacted directly by the Executive to reassess the recommendation of the Supreme Court Collegium to elevate then District and Sessions judge, P Krishna Bhat.

And the manner in which Bhat’s elevation was being stymied has, in Chelameswar J’s words, led to “dismay and disbelief”.

By way of background, in 2014, when Bhat was District and Sessions judge in the Belagavi district of Karnataka, he had sent a report to the High Court relating to the misconduct of MS Shashikala, then a Judicial Magistrate of First-Class. The High Court registered a vigilance case, but did not choose to act upon the same till February 2016.

Once Bhat’s name came up for elevation as High Court judge, Shashikala made a complaint against him. The allegations were investigated by former Chief Justice SK Mukherjee, who found that the same were concocted and incorrect, and that Shashikala had made her allegations only to malign Bhat.

Subsequently, the Supreme Court Collegium had recommended Bhat and five others for elevation to the Karnataka High Court. Having established that the allegations against Bhat were bogus, the Collegium did not take them into account. However, the Centre chose to withhold Bhat’s elevation, while accepting the other five. As Chelameswar J points out, it is a classic case of the Centre “sitting on the file”, due to vested interests. The letter states,

“Now comes what is unpredictable and unthinkable. If the government had any reservations or misgivings about Shri Krishna Bhatt’s nomination, it could have sent back the recommendation for our reconsideration — a well-established though long forgotten practice. Instead, it sat tight on the file. In other words, our recommendation still retained its validity and legitimacy. 

For sometime, our unhappy experience has been that the Government’s accepting our recommendations is an exception and sitting on them is the norm. “Inconvenient” but able judges or judges to be are being bypassed through this route.”

Chelameswar J does not hold back in criticizing Justice Dinesh Maheshwari’s role in the fiasco.

“Now the Chief Justice of Karnataka High Court informs us that he had received a communication from the Ministry of law and justice “to look into the issue.” The Chief Justice, establishing himself to be more loyal than the King, acts on it, convenes a meeting of the Administrative Committee, and decides to reinvestigate the issue, thus burying the previous Chief Justice’s findings on the same issue, given at our asking. He has been gracious enough to inform us, at least now…

…We only have to look forward to the time, which may not be far-off if not already here, when the executive directly communicates with the High Courts about the pending cases and what orders to be passed. We can be happy that much of our burden is taken away. And an Honourable Chief Justice like Dinesh Maheswari may perhaps be ever willing to do the executive bidding, because good relations with the other Branches is a proclaimed constitutional objective.”

Apart from warning the CJI of a dystopian future where the two organs are hand in glove, he goes on to say,

“...Let us also not forget that the bonhomie between the Judiciary and the Government in any State sounds the death knell to Democracy. We both are mutual watchdogs, so to say, not mutual admirers, much less constitutional cohorts.”

Towards the end, Justice Chelameswar opines that this is a matter for the Full Court to consider on the judicial side, in the interest of the institution. He concludes on a rather ominous note, stating,

“Since we are a precedent oriented institution, I may be pardoned for quoting a precedent to the Master of Roster that it was exactly a similar letter written by the then Union Law Minister which sparked up a judicial debate in S.P. Gupta.”

And the letter has prompted Maheshwari J to drop the investigation into the complaints against Bhat, as reported by The Print.

The question remains as to whether CJI Misra will agree to deal with the matter on the judicial side, after the probe has been dropped. The fact that the Executive has tried to manipulate judicial appointments in different ways, and on multiple occasions, goes to show that it is a systemic problem against which strict measures ought to be taken.

Perhaps a fifth judges cases is in the offing?

In the meanwhile, the Centre continues to sit on the recommendation to elevate Uttarakhand High Court Chief Justice KM Joseph and Senior Advocate Indu Malhotra (who has even returned to practice) to the Supreme Court, in addition to the hundreds of names pending for high court elevation.

Read Letter

Justice Chelameshwar Letter
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