The siege within the Supreme Court

A former Director of the Intelligence Bureau (IB) once enquired from a junior lawyer about the number of honest judges in the Supreme Court. The lawyer instantly replied that there were indeed four honest souls among the 24 at that time. Quizzed how he had arrived at the number, the lawyer replied that this was because every time senior lawyers received a brief, it was the job of their juniors to first find out how much the opposite side had offered to the bench. The client would then be told to decide if he would like to match the offer or contest the case.

It would remind some people of the American proverb that a good lawyer knows the law while the clever one knows the judge. Scandalous, yes. But in the legal fraternity far more lurid anecdotes can be picked up. There is clearly as much financial corruption in the judiciary as in any other walk of life. Yet, only three impeachment moves have been made in the last 68 years on corruption charges and in two of them, the judges resigned while impeachment failed in the case of Justice Ramaswami.

In the case of Supreme Court Judge V Ramaswami, who was sought to be impeached for extravagant spending when he was the Chief Justice of the Punjab & Haryana High Court, the Lok Sabha could not muster the requirement of ‘two-thirds of the members being present and voting’. The impeachment failed although as many as 190 MPs voted for the motion in the House. The motion against the present CJI (Chief Justice of India) Dipak Misra was turned down this week in record time by the Vice President and ex-officio Rajya Sabha Chairman Venkaiah Naidu.

CJI Dipak Misra has lurched from one controversy to other

CJI Dipak Misra is the first Supreme Court judge whose removal was sought primarily on grounds of judicial misconduct. Four of the five charges listed in the motion submitted by 64 members of the Rajya Sabha to the Chairman pertained to the CJI’s handling of cases in the court. The fifth charge related to an allegedly false affidavit he had submitted to acquire two acres of government land on lease in 1979 when he was a junior lawyer.

Many other judges may have been guilty of far more questionable conduct though. Many more may have been guilty of far more serious abuse of their power and positions. But the Constitution provides only two grounds for impeachment, proven misbehavior and incapacity, and leaves both undefined and open to interpretation. No wonder, few Members of Parliament have had the patience and perseverance to pursue the process. It requires the signature of 50 MPs in the Rajya Sabha and 100 in the Lok Sabha. If the motion is accepted, a three-member judicial panel examines it. And only if this panel comprising a Supreme Court judge, a chief justice of the high court and an eminent jurist finds merit in the charges that the motion is taken up for discussion in Parliament. Once the motion is passed in both Houses by two-thirds of the members present and voting, the motion is sent to the President for his assent. The process often takes a year or more to complete.

Due to retire on October 2 after a short tenure of 13 months or so, the 45th Chief Justice of India Dipak Misra has lurched from one controversy to other. Four senior most judges of the Supreme Court wrote a letter to him last year voicing their concern on two points. One was his arbitrary selection of Benches and the other being the delay in finalising the Memorandum of Procedure (MOP) pending since October, 2015.

The CJI ignored the concerns, forcing the four judges to take the unprecedented step in January, 2018 this year to go public. The judiciary was threatened and Democracy was in peril, they declared, and released their letter to the media.

“We met the CJI with a specific request which unfortunately couldn’t convince him that we were right, therefore, we were left with no choice except to communicate it to the nation that please take care of the institution” and that, “We tried collectively to persuade the Chief Justice of India that certain things are not right and remedial measures need to be taken, but unfortunately we failed”, they told the media.

The only concession made by the CJI after this extraordinary press conference on January 12 was to make the roster public. He also made it clear that he himself would continue to hear all important matters, all Public Interest Litigations and all SLPs (Special Leave Petitions). The four senior most judges were kept out of all important matters, be it the Ayodhya case, the Aadhaar matter, or the land acquisition row.

With democracy weakening, danger to independence of judiciary

Delivering a talk in March this year, eminent jurist Mohan Gopal argued that it is not the judiciary that protects democracy but it is democracy which ensures independence of the judiciary. But with democracy weakening in the country, and the Parliament already ‘shut down’, the judiciary was already under siege, he suggested. This was the biggest security threat to the country because any enemy of India could ‘capture policymaking and lawmaking’ by influencing or arm twisting the Executive.

Gopal found it shocking that two months after the extraordinary press meet by the four judges on January 12, there was no reaction from the Government, Judiciary or the media. That the concerns are not unfounded had become clear when a retiring Supreme Court judge Justice Amitava Roy cautioned his fellow judges in his farewell speech. There was a “danger that extra-legal elements and military muscles are waiting in the wings to take over” and destroy the institution, he added.

That the Modi Government wanted to exercise greater control over the higher judiciary was made clear from the beginning. Less than three months after it assumed office in May 2014, the Government pushed through Parliament the NJAC (National Judicial Appointments Commission) Bill in August. By December, 16 state legislatures had ratified the Bill and the President had given his assent. By April, 2015 the Act was notified but was struck down in October by the Supreme Court.

The tussle was over the appointment of judges to the high courts and the Supreme Court. Since 1998, the Supreme Court collegium comprising the five senior most judges of the SC had been appointing judges of the Supreme Court and in high courts.

The NJAC Act sought to hand over the power to a Commission of six people. The Law Minister would be a member besides two eminent people nominated effectively by the Government. Even more remarkably, it said that two of the six members could exercise a veto and bar an appointment. In other words, even if the three senior-most judges of the Supreme Court, also members of the Commission, agreed on a name, the others (read Government) could stop the appointment. Not surprisingly, the Act was struck down by the Supreme Court in October, 2015.

After NJAC struck down, interference by the Executive only increasing

Before 1998 the Union Government and the Law Ministry enjoyed almost an unfettered power to appoint judges. Even after 1998, recommendations of the collegium were vetted by both the Home and the Law Ministries. The practice continues.

The Supreme Court offered to put in place a Memorandum of Procedure (MOP) in consultation with the Government for appointment of judges. But for almost three years now, there has been no agreement between the two. In October, 2017 two judges of the Supreme Court served notice to the Union of India and said that the delay in finalising the MOP was no longer acceptable and that the matter would be dealt with judicially by the court.

Within days though the case was transferred to the Chief Justice’s court which recalled the notice to the Union of India. Reacting to the petitioners who submitted that delays in appointment of judges was holding up hearings, that access to court was a fundamental right and that the vacancies were shocking, CJI Misra was reported to have said, “You are giving a speech…You don’t know what we have done. We don’t intend to say it here.” He said there was no need for a debate on the issue.

Increasingly the Union Government is seen to have been interfering in the judiciary. It has not responded to the MOP finalised by the collegium in July, 2017. It has been insisting on including a provision empowering the Government to veto appointments on the ground of ‘national security’. It has been sitting over recommendations made by the Supreme Court collegium. It has bypassed the Supreme Court and communicated directly to the Chief Justices of high courts and it has unilaterally amended the collegium’s recommendation in violation of settled law and procedure.

The collegium in March, 2018 recommended that an Additional Judge of the Punjab & Haryana High Court Ramendra Jain be made a permanent judge. Jain had been appointed Additional Judge in April, 2015 for two years and given a year’s extension in 2017. The Government ignored the recommendation to make him permanent and instead allowed him an extension for six months.

“The Government is testing the water; and unless the Supreme Court puts its foot down, more brazen interference will come to light,” warns a retired Supreme Court judge. The tenure of several Additional Judges in high courts were about to end when the NJAC case was being heard, he recalled. The Government had then requested for an interim order to ensure they continued in their posts. The Government did not, indeed it could not, extend the tenures on its own then. How has it unilaterally done it now?

“Judges have not got two horns, they are men like us,” Dr Ambedkar is said to have said famously during the debate in the Constituent Assembly. Even the Chief Justice of India would be “a man with all the failings, all the sentiments and all the prejudices which we as common people have,” he had added in 1949 even before the Supreme Court of India came into existence the next year.

“Appointments are after all, what this battle is all about. They (Government) want to appoint only such judges as will be favourable to them and so are against the collegium. One knows where that will lead us if it ever comes to pass,” says Majeed Memon, NCP Member of the Rajya Sabha and a lawyer.

The crisis in the Supreme Court, he says, should have been sorted out on the very next working day after the press conference by the four judges. Every day lost in resolving the crisis has led to ‘destruction of people’s confidence in the Supreme Court after which they have nowhere else to go’.

With inputs from Sujata Anandan