Should we draw comfort from the fact that in the past too, serious assaults have been attempted and made on the Supreme Court by the executive, Indira Gandhi’s government to be precise, and the institution has survived, perhaps even revitalised itself to become more independent than before? It’s worth reminding ourselves of those swipes at the SC by a power mad ruling party which only paid lip service to democracy and brooked no resistance from an independent judiciary, one that was willing to strike down unconstitutional legislation prompted by populism and pretended socialism.
In 1973, the Congress superseded three senior most judges of the SC (Shelat, Grover and Hegde) to promote out of turn AN Ray, a judge who the ruling party considered pliant to its policies. The bypassed Justices had demonstrated independence on basic issues of democracy in their opinions rendered in the Fundamental Rights case (Keshavanand Bharati v/s Union of India). The only protest and dissent that followed was from lawyers, and the great CK Daphtary ended a speech at a public meeting with a loaded “The cold winds doth bloweth from the Steppes”. The significance of this line flew over most heads, but the sentiment expressed was clear; the government was out to capture and exert dominance over the judiciary and make it subservient to its will, inspired by the Russian style of governance.
The other blatant interference was in bypassing HR Khanna and make MS Beg the Chief Justice because Khanna was the lone voice of dissent in the infamous decision in Shukla v/s ADM Jabalpur, where a spineless SC by a majority of 4-1 held that all civil rights and liberties could be suspended during an emergency declared by government and that a citizen was disentitled from seeking justice against any tyrannical abuse of human rights by the executive.
In both these instances, it was the executive meddling with the judiciary and claiming their right to do so as a privilege, based on an earlier Motilal Setalvad Law Commission report that had recommended ‘merit’ in preference to seniority as the criterion for the appointment of a CJ. But clearly, Indira Gandhi’s government cared two hoots for merit and political subjugation of the judiciary was the only objective. The SC could, and ought to have in a show of solidarity, prevented the invasion of its independence by all the judges collectively threatening to resign if the supercession was allowed to stand.
But, they did nothing of the sort and supinely accepted the blow. However, on two previous occasions, the government had suggested giving a go-by to seniority in the appointment of a CJ. Justice HJ Kania, India’s first CJ, died in harness and it was proposed to elevate Justice MC Chagla, the then Bombay High Court Chief as the CJI over the heads of all sitting Justices. Then, again, when JC Shah, by seniority, was eligible to become CJ, he would have occupied that position for only 35 days and mostly during the court vacation. Bypassing him was contemplated for administrative reasons. In both these situations the SC firmly rejected the attempt to sideline seniority as the governing criterion and expressed their outrage. The government backed off. Thus, there were precedents for the SC to block executive interference, but Indira Gandhi was allowed to bulldoze the SC into submission when superseding ‘inconvenient’ judges.
The emergency brought in Constitutional amendments which further eroded the authority of courts in general, and but for Indira’s defeat in the anti-Emergency election of 1977, which enabled the Janata Party to restore Constitutional democracy, India could well have been a dictatorship. I mention this because one cannot sufficiently underscore the importance of an independent judiciary.
In the present crises, it’s the SC itself which appears to be imploding. Four next senior most Justices have found the CJ’s administrative functioning to be arbitrary and opaque. A very serious charge, for assigning sensitive cases in a manner that may lack probity is certainly an issue that will erode public confidence in the administration of justice. If, the four justices knew that the CJI was abusing his authority, no means adopted by them to stop this, including holding a press conference, can be faulted. Anything short of that knowledge on their part undermines the independence of the Supreme Court in the eyes of the public. And the danger in all this is in allowing the government to enter the fray and try to curtail judicial discretion particularly in matters of selection of judges.
Now, that the SC has struck down the NJAC Act, the government may well be tempted to get a toehold in that process once again and try and dismantle the Collegium of five senior justices as the sole selector of judges. After all, Arun Jaitley did describe the decision in the NJAC case as “judicial tyranny”. This makes it imperative for the SC to resolve matters in house. It’s anybody’s guess how that may be achieved and the extent of the alleged abuse by the CJI of his authority as ‘The Master of the Roster’. But, how will the truth ever be revealed. Obviously the SC, as a whole, is split into camps for and against the CJ. Rumours will be the only source of ‘facts and information’ and social media will be on overdrive to form opinions that we want to believe in.
But, where does that leave the beleaguered institution? Has it heaped this ignominy on itself? Can there be damage control and resumption of normalcy? Will politicians fish in these troubled waters for self-gain or allow the SC to clean up its mess? Time will tell. But, I have an intuitive notion that this catharsis will result in a renewed unity among the SC judges. I say this because at this flashpoint, it’s pretty much a matter of saving the independence of the third pillar of democracy. We have wise and erudite men adorning those chairs and their collective wisdom was manifested in the unanimous, historic decision in the Right To Privacy case. More than anything else, the unanimity of the decision in a matter so fundamental to democracy, gives me heart and is the source of my optimism in the resolution of the present crisis.
And one final thought if a long term solution to protecting the SC from political interference is to be put in place. This Apex body must be physically moved from the Capital City to another geographical area, or at least, different benches ought to be constituted in other Metros so that Delhi is not the only congregational venue for resolving judicial disputes. This certainly calls for a monstrous overhaul of the system, but then do we love our freedom any less?
The author is a senior advocate and has espoused causes of public interest.
He heads the Mumbai law firm Oasis Counsel & Advisory.