Judiciary: did the Government light the fire?

The four Supreme Court judges who took their concerns to the country on Friday were hailed as heroes by some and as villains by others. While retired justice R.S. Sodhi described the press conference addressed by the judges as juvenile and demanded that all four be impeached, former Attorney General Soli Sorabjee and another retired judge and former Karnataka Lokayukta Santosh Hegde voiced their disappointment at the unprecedented act. The judges, they felt, should have found a different way to make their point.

They did not, however, venture to suggest what more the judges could have done after they called on the Chief Justice of India, apprised him of their concerns but failed to convince him of the urgency to change the course.

But it is the Government really which is the elephant in the room. While the Law Minister keeps repeating that the Judiciary is independent, there is separation of powers and that differences between judges of the Supreme Court must be sorted out in the apex court itself, the Government has hardly been a disinterested party. Arguably it is the Government, and not the Chief Justice of India, which has precipitated the most serious crisis to confront the Indian judiciary.

Former Chief Justice of India T.S. Thakur publicly kept pleading with the Government to fill up vacancy of judges in the high courts and the Supreme Court. But even after four years in office, the Modi Government has still not been able to fill up the posts of over 500 high court judges in the country. The Law Ministry sat over CJI Thakur’s recommendations for even administrative transfer of Uttarakhand Chief Justice K.M. Joseph for over 20 months. And it has not only failed to respond to the Memorandum of Procedure recommended by the Supreme Court collegium in March, 2017, it appears to have put pressure on the present CJI Justice Dipak Mishra to come up with a fresh Memorandum.

The four ‘rebel’ judges on Friday pointed out in their letter to the CJI that the recommendation made in March should be deemed to have received the approval of the Government.

The crisis in the judiciary did not begin with the appointment of Justice Dipak Mishra in August last year. If during the last four years of UPA 2, the Supreme Court increasingly interfered with the Executive, indeed undermined it and set new standards of judicial overreach, during the previous four years of the Modi Government, the judiciary, especially the Supreme Court, has time and again been seen to bend over backwards to please people in power. As long as Justice Thakur remained the CJI, the Government ensured that the judiciary remains paralysed for want of appointment, funds and clearances. Justice Khehar and Justice Misra as CJIs seem to have learnt their lessons and tried not to ruffle the feathers too much.

The year 2017 saw the Supreme Court ignore three major petitions involving corruption. It refused to intervene and order a CBI inquiry into the Birla-Sahara papers case. It refused to entertain a similar plea on the ‘suicide note’ left behind by former Arunachal Pradesh chief minister Kalikho Pul. And finally the Chief Justice of India Dipak Mishra ignored the plea that he should recuse from hearing the petition seeking an independent probe into the medical admission racket in a private medical college of Lucknow.

The institutional integrity of the judiciary has been fragile for some time now. With Supreme Court judges appointing other judges, deciding cases against themselves and choosing to ignore the signs of the decaying system, it is important for the system to respond.

But with the Government signalling that it would be happy to watch judges battle each other in public, there is little hope of a quick fix.