When dissent is throttled, and the government overrules the collegium to decide who will become a judge, then democracy is in danger. This is why former Justice Jasti Chelameswar’s words have proved prophetic. There is not a single Muslim in the Modi cabinet because the BJP does not give them tickets to contest elections － with a few exceptions. And those who oppose the National Register for Citizens (NRC) may meet the fate of students studying in the Jamia Millia Islamia and Jawaharlal Nehru Universities.
The right to dissent is a species of the right to freedom of speech and expression and when the former is suppressed, the latter becomes a chimera. This is why the midnight assault on the students of Jawaharlal Nehru University on January 5 by masked goons of a right-wing student’s union with the police standing around proves democracy is being thwarted.
Again, a controversy has broken out with Kapil Gujjar, who had opened fire at Shaheen Bagh in New Delhi allegedly raising slogans to the effect that, “hamare desh me aur kisi ki nahi chalegi, sirf Hinduon ki chalegi (only Hindus shall have a say in our country, no one else).” This misguided youth does not realize that Hinduism is one of the world’s greatest religions which inculcates tolerance for all religions.
A war of words has broken out between the Aam Aadmi Party and the BJP with the former accusing the latter of using Gujjar to intimidate dissenters or “urban-Naxals” as they have been branded. Unsubstantiated media reports claim Gujjar’s father claimed he was a supporter of prime minister Narendra Modi. That has yet to be proved.
To add to this chaos, the Narendra Modi government has blocked the elevation of principal district judge P.K. Bhat as a Karnataka High Court judge despite the Supreme Court collegium iterating his recommendation for a third time. Union law minister Ravi Shankar Prasad had declared his ministry would not be a mere “post office” for clearance of putative judges recommended by the collegium for elevation.
But when the alleged punitive non-elevation of Gujarat High Court judge Akil Abdulhamid Kureshi as the chief justice of the Madhya Pradesh High Court was challenged in the apex court, Fali Nariman claimed the government was in effect a post-office. Only he chose semantics to say it was a “distinguished communicator.”
Ravi Shankar Prasad’s words have proved prophetic because his ministry returned Judge P K Bhat’s file to the collegium on September 12, 2017 terming the allegations against Bhat as “serious and sensitive” needing a “fair and proper inquiry.” For those who do not know, a district judge has administrative duties which led to a woman subordinate magistrate complaining Bhat would not clear her orderly allowance. He would allegedly summon her to his official residence late at night and make her sit there till dawn with “dishonourable intentions,” according to her.
When the law ministry forwarded a complaint by another woman subordinate magistrate, a three-judge panel concluded the complaint against Judge P K Bhat was not of sexual harassment. The apex court collegium then reiterated Judge Bhat’s elevation for a record third time which has been blocked by the government, which may have succumbed to women conspirators.
Before he retired, Justice Chelameswar wrote a letter to the then Chief Justice of India urging him to convene a full court to take up the issue of alleged executive interference in judicial appointments because "the bon homie between the judiciary and the government in any state sounds the death knell for democracy".
The immediate provocation to write to the then CJI and 22 other judges was because the then Karnataka High Court chief justice Dinesh Maheshwari held an inquiry against P K Bhat at the instance of the law ministry, bypassing the CJI who is the head of the judicial family. Justice Dinesh Maheshwari is now safely ensconced in the Supreme Court, 23rd in seniority, proving diplomacy pays off.
A government spokesman rebutted the charge of blocking collegium recommendations by saying, "we are free to sit on some files. There is no timeline mentioned in the memorandum of procedure － a document that guides the elevation and posting of HC and SC judges." So, the idealism of judicial independence is at variance from the reality because housing and salaries of the judges are paid by the executive.
By a legal fiction, the judges can never be employees of either the executive or the legislature which passed the Bill titled ‘The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill’, 2017 which also hiked the house rent allowance from July 1, 2017 and the sumptuary (food and daily expenses) allowance.
Hence, though successive chief justices claim otherwise, successful senior lawyers like Justice Uday Umesh Lalit, will accept judgeship of the Supreme Court when their pension and expenses are borne by the state, which is vehement in overturning what the five-judge bench overturned when they struck down the 99th amendment of the Constitution and the National Judicial Appointments Commission Act, 2014.
The results are there for all to see. Justice Akil Abdulhamid Kureshi was transferred from the Gujarat High Court to the Bombay High Court and now to the obscure Tripura High Court as chief justice where he will retire on March 8, 2022, if he is not elevated to the Supreme Court, which seems unlikely. He has just three other judges for company. This judge sent BJP strongman Amit Shah to jail in the Sohrabuddin fake encounter case.
And so, as retired Supreme Court Justice Markandey Katju excoriates in his blog, the 46th CJI Ranjan Gogoi, like a few of his predecessors, realised that the Modi government’s capacity to reason is fully equal to the judiciary. The result is some vital fundamental rights guaranteed by the Constitution turned into chimeras with judges like Justice Kureshi being allegedly victimised.
The writer holds a Ph.D. in Media law and is a journalist-cum-lawyer of the Bombay High Court.