Executive Order: Keep The Top Man On A Tight Leash

I view with apprehension the attitude of judges who show themselves more executive-minded than the executive, remarked Lord Atkin in his historic dissent in Liversidge v. Anderson (1941). During the UPA era, much to the delight of the BJP, the CBI was termed as a “caged parrot” by the Supreme Court. In the past seven years of the NDA regime, the CBI has not behaved any differently but it does seem that the Supreme Court has become an Executive’s court, reviving memories of the Indira Gandhi era. Like it or not, judicial independence is a question of mere perception not fact. It is, in fact, an instrumental value defined by the purposes it serves.

There can be no two opinions that the greatest danger to the independence of the judiciary does come from the Executive. True, most of our judges have been and are ind­ependent, upright and fearless. Yet, at times, governments do succeed in appointing judges of their ‘choice’.  It is an open secret that several pliant and submissive judges have made it to the highest court under different regimes. The late Justice V.D. Tulza­purkar, an eminent retired judge of the Supreme Court, had observed that sycophantic chief justices were a threat to the ind­ependence of the judiciary because they could easily pack the court or withdraw cases from one bench to allot them to another.

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Today, judges routinely app­reciate the Prime Minister. A few days back, Justice M.R. Shah, a sitting judge of the apex court, called Prime Minister Narendra Modi a “most popular, loved, vibrant and visionary leader”. Even if there is truth in this description of the chief executive, the moot question is how the public would perceive such statements coming from a judge of the Supreme Court. To be fair, Justice Shah has not done anything new. Few months back, Justice Arun Mishra (since retired) had done the same.  On Indira Gandhi’s return to power in 1980, even Justice P.N. Bhagwati had written to her saying: “I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great adm­inistrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

In the early years of the Modi government’s first tenure, there were some SC decisions—holding imposition of President’s Rule in Arunachal Pradesh in July 2016 as unc­onstitutional and the striking down of the National Judicial Appointment Commission (NJAC) in October 2016—that did go against the regime. The Centre’s dubbing of the Court’s NJAC decision as an “attack on the sovereignty of the Parliament” was misplaced. Unlike England we have supremacy of the Constitution and not of Parliament. Every legislative decision does not reflect the ‘will of the people’—the three controversial farm laws being the latest example. Yet, then finance minister Arun Jaitley had said on the floor of Parliament that the “judiciary is destroying the edifice of Parliament brick by brick”.

Then on, there was a sort of deadlock between the collegium and the government till August 2017. Things had come to such a pass that then CJI T.S. Thakur broke down in tears at the chief justices’ and chief ministers’ annual conference in the presence of the Prime Minister on April 25, 2016, lamenting the shortage of judges and delay in clearing recommendations of the collegium. To be fair to the Modi government, a large number of app­ointments to the Supreme Court were made in the last four years. At the same time though, as revealed recently by a three-judge bench headed by the CJI in response to a PIL on delays in appointment of judges, as many as 189 recommendations of judicial appointments to the high courts were still pending with the government.

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It is no secret that successive governments have attempted to control the judiciary. The budget allocation for the judiciary is a meagre 0.5 per cent of the Union budget. Even before the birth of the Republic, even a statesman of Jawaharlal Nehru’s stature had explicitly elaborated the government’s view on the subject on September 10,1949 in the Constituent Assembly:  “Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament.” On May 12, 1973, M. Kumaramangalam, Indira Gandhi’s cabinet colleague, in a speech in Parliament, had defended the appointment of A.N. Ray as the chief justice of India after superseding three senior most judges.

Kumaramangalam had the audacity to argue: “We had to take into account what was a judge’s basic outlook on life…was it not right to take all these aspects into consideration? Was it not right to think in terms of a more suitable relationship between the Court and the government…In appointing a person as chief justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics.” Clearly, exercising control over the judiciary by controlling judicial appointments is an old trick in the bag of the Executive.

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The Modi government has not yet finalised the Memoran­dum of Procedure (MoP) on the process of judicial appointments. The government in its draft MoP had introduced the controversial ‘merit cum integrity’ criterion. Since April 2017, when CJI Khehar finally sent the collegium’s views on the MoP, there has been complete sil­ence from the government.  The government, in fact, wants to reject any candidate in the so-called name of ‘national int­erest’. One really wonders if an individual is fit to continue as a high court judge, how can he become a threat to nat­ional int­erest on elevation to the apex court? Evidently, it is the government that is trying to have the final word on judicial appointments.

Lately, it appears that the MoP has lost much of its relevance as either the collegium itself does not make recommendations that may not be to the liking of the government or, in rare cases where it does so, the government simply ret­urns or delays clearance of such names, as had happened in the case of Justice K.M. Joseph. In the first few months of ass­uming power in 2014, the Modi government had refused to approve the appointment of eminent lawyer Gopal Subramanium as an SC judge.

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This isn’t all. An emerging threat to judicial independence that has largely gone unnoticed is how judges in line to bec­oming the chief justices of India are put under tremendous pressure through wild allegations. As these judges cannot publicly defend themselves, they feel frustrated and become vulnerable. This has become a new strategy to harass senior judges. Incoming chief justices remain on edge for months prior to the recommendation of their names by the outgoing chief justices and the subsequent notification of their warrants of appointment.

Kalikho Pul, former chief minister of Arunachal Pradesh, within two weeks of being unseated by the Supreme Court, had committed suicide on August 9, 2016. Though the police had recovered an unduly lengthy suicide note of 60 pages with Pul’s body, we came to know of it only when J.P. Rajkhowa, the disgruntled former Arunachal governor, in October 2016, made a statement that the police was sleeping over this explosive suicide note/dying declaration. Why Mrs. Pul, who knew about the note’s existence, kept all this while is still puzzling. On February 8, 2017, The Wire published the note, replete with allegations of corruption against the then chief justice of India and justice Dipak Misra, the then senior-most judge.

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It seemed that Justice Misra was the primary target of this letter bomb—his elevation as CJI was due in August 2017. Though every sixth person who commits suicide leaves a note, Pul’s suicide note was probably the world’s lengthiest; unusual and strange for several reasons but most importantly because nowhere did he mention that he intended to commit suicide. Allegations against Justice Misra in Pul’s note aside, representations about his alleged lack of integrity citing a land dispute in Odisha were also sent to the Prime Minister. The Modi government, however, ignored all this and eventually Justice Misra was app­ointed the CJI.

Justice Ranjan Gogoi too had spent several sleepless months due to his joining the infamous and unprecedented press conference of January 12, 2018. At this conference, it was Justice Gogoi who clearly referred to the assigning of the Judge Loya case as the reason of friction amongst senior-most judges. The then CJI, Dipak Misra, was accused of helping the government through exercise of his powers as the master of roster. The judges asserted that there had been “instances where cases having far-reaching consequences for the nation and the institution had been ass­igned...,” to certain benches without any rational basis for such assignment. “This must be guarded at all cost,” the judges had cautioned, underlining that the constitution of benches was the central grouse. Yet, CJI Misra recommended Gogoi as his successor.

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Upon elevation as CJI though, Justice Gogoi did not prove himself to be “a noisy judge”—a quality in a judge he had himself underscored weeks before he ascended to the high throne. Instead, Gogoi was probably the most pliant CJI yet of the 21st century and in almost all important sensitive matters involving the government—Rafale, electoral bonds, abrogation of Article 370, to name a few—he bailed the government out. Moreover, his controversial presiding over the bench in the matter of sexual harassment allegations against himself harmed the judiciary’s image further. His detractors, such as Lok Sabha MP Mahua Moitra, are convinced that Gogoi’s post-retirement RS nomination substantiates the allegations of quid pro quo.

In April 2021, on the superannuation of CJI Bobde, Justice N.V. Ramana is due to take over as the next CJI. On October 6, 2020, Andhra Pradesh chief minister Jagan Reddy made public his letter to CJI Bobde in which he made several uns­ubstantiated allegations against the Andhra Pradesh high court and Justice Ramana. Incidentally, earlier the same day, Reddy had met the Prime Minister in Delhi. Reddy’s letter ref­erred to the alleged proximity of Justice Ramana with former chief minister Chandra Babu Naidu. Is it not surprising that the att­orney general, who gave consent for contempt proceedings against comedian Kunal Kamra so readily, ref­used to give consent for similar proceedings against Reddy?

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The Supreme Court has not yet disposed of the contempt petition against Reddy; its collegium has, however, transferred the Andhra Pradesh chief justice. Thus, like justices Misra and Gogoi, Justice Ramana too must be under tremendous stress over his elevation. The strategy of keeping incoming CJIs on edge is dangerous not only for the health of the concerned ind­ividuals but also to the institution as a whole and this needs to end, swiftly.

(Views expressed are personal)

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Faizan Mustafa is Vice Chancellor, NALSAR University of Law, Hyderabad.