Without an independent Judiciary, Constitution is little more than a statement of empty promises: Gopal Subramanium

An independent judiciary is crucial to ensure that the promises made in the Constitution of India are upheld, Senior Advocate Gopal Subramanium said on Monday cautioning that without an independent judiciary, the Constitution would be reduced to a statement of empty promises. .Every institution has its moments of glory and challenge. The present are moments of challenge when courts have an accentuated duty to become conscious of Constitutional freedoms when governments begin to be strident in authority, he added.."True to their oaths of office, judges must act without fear, favour, affection or ill will, for without an independent judiciary, the Constitution is little more than a statement of empty promises,” Subramanium said..The former solicitor general of India was speaking at a webinar organised by the Jesus College, University of Cambridge and the Intellectual Forum on the topic "Shifting Meanings of the Rule of Law and Judicial Independence in the Indian democracy."Shruti Kapila and Saumya Saxena of the University of Cambridge moderated the discussion..India’s Supreme Court and its democratic credentials depend on the premise that all individuals are free and equal, Subramanium observed. .However, he added that with absolute freedom comes chaos and anarchy, explaining:"Society will always have some who will choose to use their freedom to another’s detriment. The solution lies in an ordered liberty. The people, thus, agree to a settlement.".In other words, people choose to part with small measures of their freedom in exchange of certain assurances, including that their freedom and equality would be guaranteed."In India, this settlement was completed on the 26 of November 1949, when the people adopted a Constitution," Subramanium pointed out. .Pertinently, he spoke of how the judiciary was ultimately trusted with the most important task of all i.e. ensuring that terms of the settlement, or the Constitution, "were not breached". Subramanium observed:."The Supreme Court became the final interpreter of the Constitution and together the Supreme Court and High Courts were tasked with the highest duty: checking the actions of both the executive and the legislature, each of whom was bound by the Constitution. Considering the enormity of this responsibility, insulating the courts ought to have been a matter of Constitutional design. No court can be expected to perform its checking functions with interference from other branches of Government.".Judges must act without fear, favour, affection or ill will, for without an independent judiciary, the Constitution is little more than a statement of empty promisesSenior Advocate Gopal Subramanium.Judicial power, he said, is never a facilitator for executive intentions. On the contrary, it has to be an interrogator or scrutineer of executive power.."Denial of liberty, but most significantly, denial of access to justice will be a historical charge of neglect which neither the government nor the courts must face," Subramanium said..Historical lessons on the flaws in the Constitutional design for Judge appointments.Subramanium noted that while there were flaws in the Constitutional design for judge appointments right from the beginning, those did not become apparent in the initial decades following independence. .The system was such that no checks were built into the appointment process to avoid abuses of power. Subramanium remarked, "Our hope was, the executive would reject self-interest and always act with good intentions. It might come as a surprise that the early years of the Supreme Court saw little tension between the Executive and the Judiciary. Constitutional design played no part in this achievement. The process worked, because the president chose to follow convention over the letter of the law. Though the Constitution only required him to consult the Chief Justice of India, in practice the President, that is the executive, always agreed with the Chief Justice’s recommendation.".As a result, Subramanium observed that the first five chief justices of the Supreme Court, by their distinction, learning, character, assisted by India’s greatest Attorney General, set the tone of independence, tempered with humility. At the time, political leaders did not view the court as an ally or adversary. The Constitution remained paramount. .One likely reason for this may have been the desire of all concerned to make the Constitution work. Looming large was the cautionary tale of Pakistan, which had received independence in 1947, just as India did, but which did not have a Constitution until 1956. This first Constitution was forecefully abrogated only two years later, Subramanium recounted. .A few altercations notwithstanding, this convention of respecting the Chief Justice's recommendations in matters of judges' appointments was followed for two decades, he added..The early years of the Supreme Court saw little tension between the Executive and the Judiciary. Constitutional design played no part in this achievement.Gopal Subramanium.It was in the 1970s that faults in the Constitutional design became apparent. The Supreme Court and the Centre clashed in a number of cases, prompting an angry executive to upset the status quo. Four judgments, all passed during the first two terms of Prime Minister Indira Gandhi's reign, marked the decline. .The four cases were IC Golaknath v. State of Punjab, RC Cooper v. UOI, the Privy Purses case and the case of Keshvananda Bharati v. State of Kerala..A fourth defeat in the Keshvananda Bharati case did not sit well with the government, which proceeded to appoint Justice AN Ray as the next Chief Justice, ignoring the incumbent Chief Justice SM Sikri's nominee for the post. Three senior judges were superseded in the process i.e. Justices Jaishanker Manilal Shelat, AN Grover and KS Hegde.."All the three were eminent judges, but a trifle too independent for the government's liking", Subramanium remarked, adding that with Chief Justice Ray's appointment, "An important convention was broken for the first time in the Constitution's history.".To put it in Attorney-General CK Daphtary's words, "The boy who wrote the best essay, got the best prize.".An important convention was broken for the first time in the Constitution's history.Gopal Subramanium on Chief Justice Ray's appointment.Subramanium observed, "Ray’s appointment exposed deep cleavages in the body politic… Weakness in Constitutional design were now visible.".A story of courage in the midst of cynicism.Subramanium went on to observe that even as the country was going through cynical times, in 1975 a story of courage emerged with the Raj Narain case when Allahabad High Court judge, Justice Jagmohanlal Sinha ruled against Indira Gandhi in an electoral malpractice case. .Resisting immense pressure, he disqualified her from contesting elections for 6 years, it was recounted. .The case went to the Supreme Court on appeal while the top court was in recess. Sitting alone, Justice Krishna Iyer declined to order a complete stay, although he allowed Gandhi to participate in parliamentary proceedings without a vote..Subramanium added:“The way Justice Iyer conducted the hearing was an outstanding example of judicial calmness, learning and transparency. All the windows of the court hall of the Chief Justice’s court were opened and milling crowds of lawyers were silently watching the proceedings. The following morning, President Fakhruddin Ali Ahmed, on the advice of the government declared a national emergency in India.”.Human rights suffered as the Supreme Court watched on acquiescing in silence. Subramanium remarked, “This is an archetypal oppression. This is being witnessed all over the world. I believe an inactive judiciary and a judiciary rendered less mobile in ideological tugs of war willy nilly supports the continuance of suppression.“.However, the High Courts would not entertain the notion that an unlawful detentions during this time could not be challenged in Court. Subramanium recounted:.“In their finest hour, nine High Courts upheld personal liberty, finding that detenues had right to move the courts during an emergency. These judges were visited with punitive transfers.".The ADM Jabalpur case that followed before the Supreme Court, in turn, became its darkest hour. The top court accepted the government's contention that fundamental rights can be suspended during an emergency. "One Judge replied, the detenues were well housed, well fed and the State's care for them was almost maternal", Subramanium recounted. .Justice HR Khanna alone stood out. Subramanium observed, "Like Lord Atkin, decades before, he put duty before all else, deciding in favour of liberty. And for his independence, he paid a heavy price.".He recounted further that Khanna resigned after Justice Beg was appointed as the next Chief Justice, superseding him. .“These are definitive moments when the court needs to reflect upon its own trajectory, its moral alignments and, most importantly, the duty to enhance hope. Because the Constitution is a document of hope", Subramanium went on to observe as he continued with his talk. .On the Executive's "new weapon" to sit on Judge appointments in the 90s.The judiciary of 1980s saw judges being approached in numerous public interest litigation causes. The Courts were now clothed with immense power and citizens no longer trusted their government to perform basic tasks. Instead, they turned to courts..By 1990s, a new problem had emerged, Subramanium observed, explaining."The list of pending matters was increasing by the day. The judicial system was on the verge of collapse. An obvious solution was to appoint more judges, especially since several posts lay vacant in the High Courts. The names had been recommended by the Chief Justice, appointments were facing delay.".In other words, "The executive had discovered a new weapon in their arsenal: the pocket veto. It could simply sit on appointments that made it uncomfortable. There was little that judiciary could do but request that all appointments be finalised.".The executive had discovered a new weapon in their arsenal: the pocket veto. It could simply sit on appointments that made it uncomfortable.Senior Advocate Gopal Subramanium.With the three Judges cases, the Supreme Court retained primacy in judicial appointments and the judiciary was given the final say, Subramanium went on to recount. Later, the 99th Constitutional amendment which proposed a National Judical Appointments Commission was also struck down by the top court. .As he concluded his address, Subramanium emphasised:"In 1950, the system rested on hope that the executive would do the right thing. 70 years on, the system rests on the hope that judges would do the right thing.".The session ended after a question and answer session.