Free Press Journal

Judicial independence – real or imaginary?


Citing ‘institutional discipline’, Justice Jayant Patel refused to comment on why he was transferred when probed by reporters. He said he was not willing to shift to Allahabad with his family  just ten months prior to retirement. Justice Patel was the senior most judge of Karnataka high court and resigned rather than meekly accept the transfer.

Two events this fortnight have sparked a debate as to whether judicial independence is real or imaginary. The latest was when Justice Jayant Patel who was the seniormost judge of the Karnataka high court resigned rather than meekly accept a transfer to the Allahabad high court where he would have been relegated to the third seniormost judge, thereby losing out on becoming the chief justice of the Karnataka high court where he was next to the chief justice in seniority.

He was due to become the chief justice of the Karnataka high court as he was a judge from Gujarat which was in conformity with the policy of bringing in judges from outside the state as chief justices. Citing “institutional discipline,” the judge refused to comment on why he was transferred when probed by reporters. He said he was not willing to shift to Allahabad with his family  just ten months prior to retirement.

Both the bar associations of Gujarat and Karnataka announced a day’s boycott of all courts in protest. Significantly, the judge had ordered a CBI probe into the Ishrat Jahan fake encounter when Narendra Modi was the chief minister of Gujarat,  embarrassing the Modi government. The Supreme Court later ordered the transfer of the BEST bakery  cases to the Bombay high court because the Modi government showed no interest in pursuing these cases against Muslims.

The Bombay high court appointed Judge Abhay Thipsay as a special judge in these matters. He awarded life sentence to nine out of 21 accused in the BEST bakery riots cases and was elevated to the Bombay high court. But Thipsay  was unceremoniously transferred to the Allahabad high court shortly before he was due to retire.

 It is not known why Thipsay  was transferred – whether he showed undue alacrity in hearing the Salman Khan drunken driving case out-of-turn when the actor approached the high court in appeal and staying his conviction for five years. Or due to his sentencing the nine accused to life in jail. Perhaps Justice Vidyasagar Kanade who formed part of the high court collegium  and has now retired, may know. But he is not talking.

Second — Justice Rajiv Shakdher of the Delhi high court was shunted to the Madras high court  after he embarrassed the Modi government in 2015 by quashing a lookout notice issued by the Intelligence Bureau against Greenpeace activist, Priya Pillai, preventing her from going abroad to address a U.K. parliamentarian group. Justice Shakdher defended her right to dissent.  Narendra Modi had lectured the judiciary against its trend of admitting petitions filed by “five-star activists.” Ironically, Modi, who has no legal background, spoke at a five-star hotel in Delhi.

The third controversial event involved the independence of the judiciary is whether  the Supreme Court collegium can violate its own Memorandum of Procedure (MoP) when circumstances arise as has happened this month when two incumbents were cleared despite being over 55 years of age which is the upper age limit for appointment as a high court judge?  Lawyers should have attained the age of 45 years before being invited for elevation as high court judges. They should also have a certain number of reported judgments apart from a lucrative practice. The Supreme Court collegium agreed to this in March 2017 preceded by bitter wrangling dramatized by the then Chief Justice of India T.S. Thakur weeping before Prime Minister Narendra Modi. But his stoic successor, J.S. Khehar,  capitulated on the national security clause.

To return to the present, the Andhra Pradesh executive objected to recommendations of the Andhra Pradesh high court collegium because one candidate had neither any practice in the high court nor a single reported judgment as he practiced only in the district court. The Andhra government also pointed out to the Supreme Court collegium that five of the names recommended for judgeship were relatives of judges or juniors of judges or relatives of their kith-and-kin who were also lawyers or judges.

It appears that one candidate was honest enough to declare that he was a junior of a senior law officer who is now a senior Supreme Court judge. Some of the aspiring judges had inadequate number of reported judgments while one candidate filed only 91 cases during the last five years. We reach an inescapable conclusion that neither can the executive nor the Supreme Court collegium be trusted with absolute power.

 A single party government is as dangerous as a collegium’s secrecy in deciding who will be elevated as judges. The Constitution makers did not envisage a collegium to appoint and transfer judges which was a creation of the judges themselves in the 1990s in what came to be known as the First, Second, Third and later the Fourth judges’ case.

Finally, the icing on the cake was that of Gopal Subramaniam who withdrew his nomination  as a Supreme  Court judge to avoid embarrassing the apex court collegium which  recommended him for elevation. But the Modi government refused to allow him to become a Supreme Court judge which proved that the collegium had no powers even after striking down the National Judicial Appointments Commission Act and the 99th amendment to the Constitution.

 Like Justice Jayant Patel, Gopal Subramaniam had embarrassed the then Modi government in Gujarat when as amicus curiae, he was responsible for the apex court entrusting the CBI with the probe into the disappearance of Kausar-bi and Shahabuddin Sheikh in fake encounters. These events remind us of  April 25, 1973 when Indira Gandhi superceded Justices J.M.Shelat, K.S. Hegde and A.N. Grover to make a supine Justice A.N. Ray the CJI. On January 29, 1977, she superceded Justice H.R. Khanna to make Justice M.H. Beg the CJI prompting lawyers to remark those were the days of judges looking forward to their future rather than forward-looking judges. Today, whether judicial independence is real or imaginary is a moot question.

The author holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.