Zafar Agha on judiciary: Modi Govt has put democracy in peril

The worst fears about the Government’s intention to control the judiciary seem to have come true. The manner in which the Law Minister Ravi Shankar Prasad wrote an imperious letter to the Chief Justice of India, conveying the Government’s reservations in accepting Justice KM Joseph’s elevation to the Supreme Court is brazen. It leaves no one in any doubt that the Modi Government will not tolerate independent judges.

The Supreme Court collegium, as widely reported, had recommended two names—Indu Malhotra directly from the bar and Chief Justice Joseph from the Uttarakhand High Court—for elevation as judges to the apex court. The Government notified the appointment of Indu Malhotra while declining to accept Justice Joseph’s elevation. It is of course well known that the ruling establishment is upset with Justice Joseph ever since he overturned President’s Rule in Uttarakhand two years ago.

Indu Malhotra, a specialist in arbitration matters, is said to be close to the finance Minister Arun Jaitely but is acknowledged to be a fine lawyer. Some senior lawyers however accuse her of being soft on the Hindutva elite while Justice Joseph is considered a highly independent and liberal judge—the kind becoming increasingly unacceptable to the ruling party.

The established practice so far has been that the government accepts the recommendations made by the collegium. The Government is also duty bound to either reject all the names or accept the entire recommendation of the collegium. However, the Law Minister in his wisdom has chosen to inform the CJI that the government wants Malhotra to be sworn in immediately while the collegium must re-think its call to elevate Justice Joseph. It is a violation of the convention and the established procedures and a clear case of government’s interference in the functioning of the highest court of India.

The government’s message is loud and clear: we want a Supreme Court that listens to us and not to the Constitution. It is a serious threat to not just independence of judiciary but also a grave threat to the basic tenets of democracy wherein the judiciary must enjoy complete freedom to function independently.

Chief Justice of India Dipak Misra also rejected the plea made by 100 Supreme Court lawyers that Malhotra’s elevation be put off till the government cleared Justice Joseph’s name too, after reiteration by the collegium. He appears to subscribe to the school of thought that does not mind the government having its say in judicial appointments.

Justice Misra should have called for a meeting of the collegium as soon as Justice Joseph’s name was dropped. It is also in public domain that four other senior members of the collegium do not see eye-to-eye with the CJI. They are the ones who in an unprecedented move had gone public holding a press conference warning the nation that all is not well with the functioning of the apex court.

Indeed, all is not well with the functioning of Supreme Court of India. We have a Chief Justice who faced an impeachment motion that was rejected by the Rajya Sabha chairman only the other day. Now the government is refusing to accept the elevation of a High Court judge to the Supreme Court bench. Is judicial freedom not in peril in these circumstances?

Well, what is going on inside the Supreme Court not only calls for serious introspection by all stakeholders of our democracy, but it also needs an urgent course correction. Or else, Indian democracy will truly be in peril.

The author is Editor-in-chief of National Herald, Navjivan and Qaumi Awaz