In Sua Causa
The Caravan|July 2019
In Sua Causa

What the judiciary has done to itself.

Atul Dev

{ONE}

Narendra Modi’s arrival in the prime minister’s office in 2014 heralded tense days for the Indian judiciary. The Bharatiya Janata Party’s manifesto had pledged to “set up a National Judicial Commission for the appointment of judges in higher judiciary.” Within months of the party taking power, both houses of parliament passed the ninety-ninth amendment to the Constitution, to create the National Judicial Appointments Commission. By the end of the year, it was ratified by 16 state legislatures, signed by the president and enshrined in law.

The NJAC, as envisioned, was to have six members, entrusted with control over appointments to the Supreme Court as well as appointments and transfers in all high courts. Led by the Chief Justice of India, it was to include the second and third most senior judges of the Supreme Court, the law minister, and two “eminent persons” nominated by a panel of the chief justice, the prime minister and the leader of the opposition. One of these persons was to either be a woman, or belong to a religious minority, scheduled caste or scheduled tribe.

The new body proposed to supplant the collegium system, which has fulfilled the same purpose since 1993. The collegium, too, is headed by the CJI, but its remaining membership is confined to their four most senior colleagues; there is no representation from outside the Supreme Court. It forwards the names of recommended appointees to the law ministry, which may, via the Intelligence Bureau, scrutinise their backgrounds. Barring any objections from the ministry, the candidates are then appointed to the court by the president. If the ministry wishes, it can send back, with its stated reasons, the names of any candidates it would like the collegium to reconsider. Should the collegium still stand by a candidate and reiterate its recommendation, the president must, despite the government’s reservations, issue their warrant of appointment. (Each high court has its own collegium, comprised of its chief justice and their two most senior colleagues. These nominate candidate judges for their respective courts, whose files must then be cleared by the Supreme Court collegium before they can be appointed.)

The NJAC hoped to give the executive branch of government a direct say in shortlisting candidates for the higher judiciary and, in optimistic eyes, could even have led to some transparency. BR Ambedkar, the main architect of the Constitution, would have preferred this over the judges-only collegium, as he had made clear before his fellow members of the Constituent Assembly. The document the assembly ratified, in 1949, did not leave higher judicial appointments to either the judges or the government alone; it hoped that both would work in tandem to find the most suitable nominees. But that hope was dashed in the 1970s.

“Indira was the worst,” a senior advocate of the Supreme Court told me recently. It is not far-fetched to imagine India’s entire legal community singing that line in unison. Indira Gandhi’s decision as prime minister to install AN Ray as the CJI in 1973—superseding the Supreme Court’s three most senior judges at the time—violated the convention of promotion by seniority that the judiciary has held dear for its entire history. The move was seen as retribution for the superseded trio’s positions in the Kesavananda Bharati case. In it, the Supreme Court, by a narrow majority of a 13-judge bench, had ruled that parliament could not pass any laws that violated the “basic structure” of the constitution; and affirmed, for the first time, the court’s right to strike down any laws that did. Gandhi had not taken kindly to this curtailment of the government’s power.

The pernicious fruit of what Gandhi sowed arrived, most famously, with the Habeas Corpus Case, which followed her declaration of the Emergency, in 1975. Faced with the government’s use of emergency powers to detain its critics without trial, a five-judge bench headed by Ray waved away citizens’ right to appeal their detention before a court of law. Only a single judge dared to dissent.

After the Emergency, the judiciary faced the job of restoring its fallen image. Its response, always invoking the extremes of the Emergency for justification, was the consolidation of the doctrine of judicial primacy—part of which now means that judges must be pre-eminent in the appointment process. This presumed that, if left to itself, the judiciary would automatically produce competent and independent courts; never mind that, even as the abstract doctrine was made reality, comparatively minor but still relentless instances of executive influence over the courts carried on. Step by step, India’s top judges abrogated to themselves more and more of the authority to select and promote their own.

The prospect of the NJAC resurrected old fears. There was some reassurance, though, in the fact that the Supreme Court of 2015 was not the Supreme Court of 1975. The government, theoretically at least, had had no say over the court’s composition for over two decades. And the power of the judiciary had grown such over this period—through the use of its powers established in the Kesavananda Bharati case, through the rise of public-interest litigation and more—that at the beginning of this decade jurists worried about the courts’ interference in the domain of the executive, not the other way around. This time, some hoped, the court would be more resilient.

Then again, the judiciary created by the collegium system had not yet faced an executive of comparable power to that under Modi. The BJP had just secured the first single-party majority in a general election since 1984, when Indira Gandhi’s son had inherited the Congress at its height following her assassination. Modi himself was an unabashed strongman. After the anti-Muslim pogroms in Gujarat, which came during Modi’s tenure as the state’s chief minister, the Supreme Court itself had classed him among “modern-day Neros looking elsewhere when innocent children and helpless women were burning.”

To add to the disquiet, the Rashtriya Swayamsevak Sangh, the BJP’s parent body, had long wanted to inject the judiciary with its Hindutva ideology. A draft proposal for restructuring the Indian government that was circulated at a 1998 conference of the Akhil Bharatiya Vidyarthi Parishad, the student wing of the RSS, proposed the creation of a “guru sabha” comprising sadhus and sanyasis. Among other functions, this body would act as a judicial commission, with the power to nominate and impeach judges of the Supreme Court. This was reported in 2000 by Subramanian Swamy, now a member of the BJP, in a magazine article titled “The RSS game plan.”

That proposal might have seemed fanciful, but Hindutva’s seep into the judiciary was already all too real. Take, for example, the appointment of AK Goel as a judge of the Punjab and Haryana High Court, in 2001. A couple of years after the fact, it was reported that the Intelligence Bureau’s background check on Goel had noted that he was the general secretary of the All India Adhivakta Parishad, the lawyers’ wing of the RSS. Under a field titled “Reputation/Integrity,” the report had noted, “Corrupt person.” The law ministry, then headed by the BJP’s Arun Jaitley, approved Goel’s nomination anyway.

The president, KR Narayanan, refused to sign Goel’s warrant of appointment, and sent his file back to the ministry. Instead of then returning the file to the collegium, Jaitley defended Goel’s nomination himself, and dismissed the IB’s findings as a “slur.” Goel’s file was sent to the president again, this time with the signature of the prime minister, Atal Bihari Vajpayee, attached. Narayanan, now that Goel’s file had come before him a second time, reluctantly signed the warrant of appointment. “I feel that a more desirable course of action would have been to follow the same procedure … where the advice of the Chief Justice, which is integral to the selection process, was sought again and duly received,” Narayanan wrote to the ministry. “I would also appreciate if my instant observations are shared with the Chief Justice of India along with my earlier observation.”

Goel went on to serve as the chief justice of two high courts. Shortly after Modi became the prime minister, Goel was appointed to the Supreme Court. Last year, just before he retired, he headed a bench that diluted the provisions of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, a long-standing irritant in Hindutva eyes.

Goel was elevated to the Supreme Court alongside Arun Mishra. Earlier, the collegium had thrice considered and decided against Mishra’s nomination; on one of these occasions, it had asked for a background check on him. According to an article in the Economic and Political Weekly, the check revealed that Mishra was close to the RSS. Any prior reservations were evidently put aside with the advent of the Modi government.

At the same time that Goel and Mishra were elevated, the Modi government had blocked the appointment to the Supreme Court of Gopal Subramanium, a former solicitor general. In a letter to the collegium, Subramanium wrote that the snub was retribution for his involvement in the trial of Amit Shah, Modi’s top lieutenant, for Shah’s alleged role in the extrajudicial killing of Sohrabuddin Sheikh by security forces in Gujarat in 2005, when Modi ruled the state. Subramanium withdrew his name from consideration.

The sense of foreboding evaporated in October 2015. After considering the ninety-ninth amendment, the Supreme Court ruled that, by creating the NJAC, it violated judicial independence, an accepted basic feature of the Constitution. The amendment was hence struck down as unconstitutional. The day after the judgement, the front page of the Indian Express read, “Court supreme: Supreme Court.”

At half past ten on 20 April 2019, Bhagwan Das Road was deserted. Absent was the usual morning rush of autos and cars, the stream of harried lawyers in black and white, the queue at the security check inside Gate C of the Supreme Court. The left flank of the main block was being watered down with a hose. The resulting shower would have sprayed anyone walking towards the courtrooms, but no one was. It was a Saturday, and the court was supposed to be shut.

News had broken about an hour earlier that the serving CJI, Ranjan Gogoi, had been accused of sexual harassment by a former employee of the Supreme Court. The previous day, the former employee had sent an affidavit to sitting judges of the court, bar Gogoi, detailing her charges. She had been fired from the Supreme Court, she wrote, and she and her family had been persecuted by the police, because she had resisted “the unwanted sexual advances of the CJI.”

By around 10 am, the Supreme Court released a notice to say that Gogoi had constituted a “special bench” for a “special sitting” to “deal with a matter of great public importance touching upon the independence of judiciary.” The bench consisted of Gogoi himself, along with the justices Arun Mishra and Sanjiv Khanna. The matter had been brought before the court by Tushar Mehta, the solicitor general—though it was not clear how, since the court had not been in session.

I ran under the shower from the water hose, up the stairs to the court and across the concourse towards the central dome. A guard outside the CJI’s courtroom checked my press pass, and I paused for a few seconds to catch my breath. Inside, Gogoi was about to become the third consecutive CJI to trample upon the first principle of natural justice: Nemo judex in sua causa—no person should be a judge in their own cause.

The forty-fourth CJI, JS Khehar, had faced scrutiny after the death of Kalikho Pul, who was briefly the acting chief minister of Arunachal Pradesh in 2016. Pul, a long-time member of the Congress, had parted ways with the party and, with the support of other rebels and the BJP, formed his own government. The Supreme Court dismissed Pul’s government and ruled his appointment invalid, and Khehar, before he was the CJI, had headed the bench that delivered the verdict. An alleged suicide note in Pul’s name accused one of Khehar’s sons of having approached the politician for a bribe to sway his father’s judgement. The note also accused a relative of Dipak Misra, Khehar’s colleague on the bench, of having done the same thing.

The Supreme Court had ruled in the 1990s that no one could file a first-information report naming a Supreme Court judge without first getting permission from the CJI. Pul’s widow, Dangwimsai, sent Khehar a letter asking his permission to do just that. Khehar decided to treat the letter as a writ petition, and listed it before a Supreme Court bench of his choosing. Dangwimsai withdrew the “petition,” expressing protest. The FIR never came. During the hearing, her lawyer told the bench, “A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more.”

The forty-fifth CJI, Dipak Misra, was confronted with transcribed conversations of a former judge soliciting bribes to influence the course of a matter Misra had heard before he ascended to the top post. These were recorded as part of an investigation by the Central Bureau of Investigation. A lawyers’ group approached the Supreme Court— specifically, a bench led by the court’s second most senior judge—to ask for an independent investigation. Misra used the CJI’s exclusive power to constitute benches and assign cases to bring the group’s petition before a handpicked bench led by himself. The bench dismissed the matter without even bothering to hear the petitioners’ arguments.

Misra later became the first CJI ever to face impeachment proceedings, when the opposition in parliament put forward a motion for his removal. This was blocked by the chairman of the Rajya Sabha, the BJP leader M Venkaiah Naidu. The opposition appealed to the Supreme Court. When the petitioners asked the bench hearing the matter who had passed the order that constituted it, the bench refused to answer, and the petitioners refused to argue further.

Now it was the turn of the forty-sixth CJI, Gogoi. I stepped from the empty corridors into the CJI’s courtroom. Gogoi was in the middle of a monologue, before a courtroom only half filled by the few lawyers who had managed to rush in to watch. Mehta, the solicitor general, and KK Venugopal, the attorney general, stood at the front. Only the visitors’ boxes at the back were full, packed with journalists. It was to them, mostly, that Gogoi seemed to address himself.

Seated under the seal of the Supreme Court, the republic’s highest judge questioned the motives of the complainant. The solicitor general called the complainant an “unscrupulous lady.” Her lawyers were not present to defend her.

Gogoi stated that the complainant had faced two FIRs, including one that was still pending, and that he did not think he should stoop so low as to even deny the charges. He alleged a conspiracy against the office of the CJI, and repeated several times that the independence of the judiciary was under threat. “My peon has got more money than me,” he said, and claimed that since no one could accuse him of corruption, “they have brought this up.”

After speaking for half an hour, and having anchored the entire hearing, Gogoi announced that he would not be party to the order passed that day. It later appeared with the names of only the other two judges. The order asked the media to exercise restraint in publishing “wild and baseless allegations.” Almost every headline that followed included Gogoi’s denial of the complainant’s charges.

One of the first people to jump to Gogoi’s defence was Arun Jaitley, then the finance minister. In a blog post titled “It’s Time to Stand up With the Judiciary,” he dubbed the allegations an “assault on the institution,” and reminded everyone about “the decade of 1970s,” when “we witnessed supersession of judges, intimidation of courts and transfer of High Court Judges.” He concluded that “we should leave it to the wisdom of the Court as to how they intend to deal with it.”

The wisdom of the court was to form a three-judge panel to look into the charges. By the panel’s own admission, its mandate was not to conduct a departmental inquiry, or an in-house probe, or an investigation of possible sexual harassment. It was unclear if the panel even had the power to pass a decision against Gogoi. It did not tell the complainant what procedure it followed, did not give her any record of its proceedings, did not even allow her a lawyer when she appeared before it. She withdrew from the proceedings in protest. Meanwhile, protestors who gathered outside the Supreme Court to show their frustration with this mockery of due process were detained by the police.

The panel continued ex parte, and found “no substance in the allegations.” The court also ordered a former judge to look into whether the complainant was part of a conspiracy against the CJI. That investigation is ongoing.

The NAJC’s fate was decided by a five-judge bench of the Supreme Court led by Khehar, with a four-to-one majority. The lone dissenter, Jasti Chelameswar, got to the heart of the matter from the very first paragraph of his opinion:

We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?

Like the other judges on the bench, Chelameswar was all too aware of the dangers of executive dominance. And, also like the others, he acknowledged that the collegium system was far from perfect. But where the others held that the collegium was the least unpalatable option available for safeguarding judicial independence, Chelameswar disagreed—above all because the system was utterly non-transparent. When it came to the collegium’s deliberations and decisions, he wrote, barring the occasional leak, the “records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India.”

Chelameswar saw merit, and no constitutional affront, in an NJAC with not only members of the judiciary and the executive, but also, as the amendment proposed, with two outside representatives, from civil society. This provision, Chelameswar argued, could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”

Here, Chelameswar broke a taboo. In the unwritten codes of the legal and judicial fraternities, such “unwholesome trade-offs” and “incestuous accommodations,” though whispered of privately, are not to be spoken of in public. Ruma Pal, a former judge of the Supreme Court, had pointed to this before, and Chelameswar quoted her as well:

Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and “lobbying” within the system.

Chelameswar provided two examples from the existing records of the Supreme Court. In one, Chelameswar wrote, a judge was blocked from elevation to the Madras High Court in 2009, in what appeared “to have been a joint venture in the subversion of the law” governing the collegium system “by both the executive and the judiciary”—one “which neither party is willing to acknowledge.” In the other, from around the same time, PD Dinakaran, then the chief justice of the Karnataka High Court, had been nominated for elevation to the Supreme Court by the collegium. While the nomination was under review, Dinakaran was accused of having abused his power and accumulated wealth in massive disproportion to his official income. After public calls for an inquiry, his elevation was shelved.

Chelameswar noted that, by all indications, the collegium had not departed from its usual procedures in first selecting Dinakaran for elevation. The fact that, in the normal course of things, such a judge had made the initial cut “exposed the shallowness (at least for once) of the theory propounded by this Court … that the CJI and the Collegium are the most appropriate authorities to make an assessment of the suitability of candidates for appointment as Judges of Constitutional Courts.” Chelameswar noted that other examples had also been mentioned during the NJAC hearing, “to demonstrate not only the shallowness of the theory but also [that] the recommendations by the Collegium have not necessarily always been in the best interests of the institution and the nation.”

These were already heavy words at the time they were written. Since then, their weight has only grown, and in monumental proportion. Khehar’s elevation to the position of CJI, fifteen months after he led the bench in the NJAC case, inaugurated a series of crises that have left the reputation of the Supreme Court in tatters. There has been the sequence of CJIs ruling in their own cause, and the first ever move to impeach a sitting CJI. There has also been an unprecedented press conference, in which senior judges of the Supreme Court broke the judicial protocol against speaking to the media to sound the alarm over the rot within the institution. Alongside it all, there has been a marked turn in the relationship between the judiciary and the executive, in a direction that raises uncertainty over the courts’ ability to act as a check on the other branches of government.

The inescapable irony is that the judiciary, after all the effort to formally distance itself from the executive after the Emergency, has come full circle to face the same questions over its independence that it did back then. With that, the singular purpose of creating the collegium system stands defeated. The crisis in Indira Gandhi’s day was seen as one of executive imposition—the judiciary’s entire response to it presupposed that that was all it was. But now, after decades of judicial primacy, the judges cannot credibly deny that the mess is very largely of their own making.

The executive—particularly in its current incarnation—is not blameless. The Modi government, with its fixation on centralising power, is an especially potent threat to judicial independence, and has been the greatest beneficiary of the courts’ sorry state. But if it has pushed to get as much out of the courts as it can, it is akin to the executives that have preceded it, and the ones that will follow. Executives have always been assumed, and rightly so, to want to trample on judicial territory. This assumption has forever animated systems of judicial appointment in all of the world’s democracies, India among them. But where every democracy has found its own ways to guard against undue executive power over the composition of the courts, no other democracy has created anything like the collegium system.

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July 2019