A seasonal itch which hits our politicians every once in a while, a diversionary tactic, you might call it, became very visible this past week -end, when the President and the Law Minister chose to revive that old one about the judiciary , more precisely the appointment of Supreme Court judges. It’s really an old favorite of the political class though the founding fathers had rarely anticipated it when they framed the constitution.
Yes- a living constitution provides for amendments – India predictably has had any number of these in sixty years – but rarely of the kind that our politicians have sought to superimpose on it. Mrs Indira Gandhi was of course, the most persistent of the amendment makers , particularly in her build up towards the Emergency and the 19 months it lasted .
It was her diktat that led to the supersession of three Supreme Court judges and also gave birth to the doctrine of the committed judiciary . And as is our politician’s wont, she justified her demand for “commitment” citing the instance of President Roosevelt of the US having appointed judges who were committed to his programs.
Speaking at a recent seminar on “recent trends in judicial reforms: a global perspective ” on Saturday last week, the President asserted that judicial reform was a continuous process and with constant consultation among stakeholders consensus could be achieved to engender changes. The President was right when he underlined the fine balance existing in democracies between the three pillars of the state.- the legislature, executive and judiciary , holding with the warning that the three organs should not step into or play the role not assigned to them by the Constitution. A point well taken indeed.
He did also mention various steps suggested by the 18th Law Commission to improve the functioning of the judiciary like cutting down on delays in delivery of justice. Taking the cue from here, the Law Minister, Mr Ashwini Kumar who was present announced the intention to introduce the Judicial Appointments Commission Bill in Parliament thus opening up a virtual Pandora’s box.
The Congress party’s track record in accountability not being particularly reassuring, one can only hope and pray that it will not play games when it comes to forming the commission on judicial appointments. The party’s tendency to establish the supremacy of the executive over the judiciary is too well known to be recounted here. Over the years many of the party’s eminent lawyer -members , a few adorning the Law Minister’s chair, have been party to creation of indefensible situations.
It all began with the supersession of three Supreme Court judges and the installation of AN Ray as the Chief Justice. One of the judges superseded was Justice HR Khanna , a highly respected jurist. Mrs Gandhi’s Minister of Steel, Mr Mohan Kumaramangalam , a very eminent lawyer, was the one who propounded the theory that the executive had the right to recruit or promote those who subscribed to the philosophy of the Government.
When the Emergency came around that very time 16 judges who did not toe the line were transferred. Mrs Gandhi who lost the elections in post -emergency elections, only to return after the Janata Party experiment flopped, her followers in the party’s higher echelons lost no time in vilifying the judiciary, treating every decision adverse to her Government as an attack on the executive.
The Rajiv Gandhi Government, , after his mother’s assassination, , fortunately for the young Prime Minister, made partial amendments by choosing to leave the selection of Supreme Court judges alone, opting in favour of three judges- the Chief Justice and two senior most judges of the court doing the honors, thus giving a good bye for the present to the notorious doctrine of “committed judiciary”.
The present Law Minister’s proposal to leave the task of suggesting a way out for the appointment of the higher judiciary to the proposed Judicial Appointment Commission is fraught with dangers, including the Congress Party’s obsession with meddling and choosing its men for such commissions. One of the more illustrious Supreme Court judges , the late Justice Tulzapurkar , nearly four decades ago , had observed in the course of a case concerning transfers , that “sycophantic Chief Justices” were a threat to the independence of the judiciary because they can easily pack the court or withdraw cases from one bench to another cannot be wished away . The danger still exists .One need say no more than that unless the Government stops meddling in the appointment of judges and unless the Chief justices cease to be less “sycophantic “to use Justice Tulzapurkar’s description.
The late judge had obviously in his mind the case of Justice Bhagwati writing a highly eulogistic letter to Indira Gandhi on her “resounding return” to power after she was defeated in the 1977 election. Bhagwati wrote ” it is a most remarkable achievement of which you , your friends and your well wishers can be justly proud…. You have become the symbol of the hopes and aspirations of the poor hungry millions of India for lifting them from dirt and squalor and freeing them from poverty and ignorance ”
Mr Bhagwati himself had been a pioneer , it must be said, of legal service programs to help the poor and the weak. Indira, had in her earlier term as Prime Minister, appointed a committee under Justice Bhagwati for establishing a comprehensive and dynamic legal program ; his report was submitted to the Janata government which chose not to act on it, probably because Indira Gandhi had appointed the committee, which obviously made the report a “no”, “no”, for it.
However laudable the present government’s intentions, as enunciated by the Law Minister at last week’s seminar at Delhi, the best guarantee of the rule of law is an independent judiciary , a strong bar and enlightened public opinion. In the words of Justice H. R. Khanna, who was a victim of Indira Gandhi’s supersession, there can be no worse indication of decay of rule of law than a subservient judiciary , a docile bar and a society with gravely coarsened conscience . The real test of the independence of the judiciary arises when the atmosphere is surcharged , when a brooding sense of fear , when important personalities get involved and when judicial processes are used by those in power to persecute political opponents under the garb of prosecution. As Justice Khanna had observed, at such times it is no so much as the person arraigned as the accused who is on trial as it is the judiciary which is on trial . Law Minister Ashwini Kumar is a learned man , a man of law; one expects better than sycophancy from him in a matter than is bound to have a lasting impact on our future as a democracy . No packed commissions and no packed courts , a smelly thought that one but can’t be ruled out , given our politician’s short-sightedness.
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