Yet Another Act of ‘Emasculation of Judiciary’

As published in The Pioneer- www.dailypioneer.com/state-editions/bhubaneswar/yet-another-act-of-emasculation-of-judiciary.html

Monday, 07 July 2014 | NAVNEETA DASH | in Bhubaneswar

There was nothing that barred the Modi Government from seeking reports of the CBI and the Intelligence Bureau that questioned the professional conduct and suitability of Gopal Subramanium’s candidature for judgeship in the Supreme Court. But in view of the manner in which it was handled by the Government, mala fide is writ large.

If there were adverse reports received against him, the Government should have forwarded them to a collegium along with the file containing Subramanium’s candidature requesting it to reconsider its decision. The fact is that files clearing recommendations of all the other candidates were returned except that of Subramanium. It was only after coming to know about such non-return of his file, Subramanium chose to withdraw his consent for his candidature as an SC judge.

Let us not forget that it was the same Subramanium who had resigned as India’s Solicitor General on moral grounds during the UPA Government’s tenure. This should speak volumes about the paramount importance he attaches to his principles and dignity as a professional, when he chose to step down. However, it is a matter of shame that no one from the Bar or the Bench backed him at such an hour of peril.

Independence or autonomy is the heart and soul of judiciary, lack of which would render the judiciary as good as a toothless tiger. Encroaching into the realm of affairs of the judiciary, especially into its independence in particular, is certainly not something expected out of the executive.

The attack of the executive on the autonomy of the judiciary probably started in 1973 when it was none other than former Prime Minister Indira Gandhi who was heavily criticised for appointing Justice AN Ray as the Chief Justice of India, deriding the long-standing convention of seniority, by superseding three other SC judges, who were senior to Justice Ray.

Mistakes should be learnt from, and not repeated. Modi cannot be allowed to replicate the mistake that Indira Gandhi did, what was aptly described by MC Chagla as ‘emasculation’ of the Indian judiciary in his autobiography ‘Roses in December’.

The Modi Government ruining Subramanium’s candidature for judgeship was nothing but a tight slap on the autonomy of the Indian judiciary. Such an act deserves outright and indignant condemnation not just from members of the Bar and the Bench, but from people belonging to all strata of the society as Modi seems to be determined to outshine Gandhi, when it comes to running a dictatorial Government under the guise of a democratic one. 

The ‘collegium system’ of appointment of judges was a ‘judicial invention’ that evolved in 1993 through the Second Judges case (Supreme Court Advocates-on Record Association v. Union of India) in which it was held that such a system was to be a “participatory consultative process in which the executive has the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.” In such a backdrop, wasn’t it bounden duty of the judiciary to protect its own ‘invention’ from any kind of executive interference?

The incumbent Chief Justice of India took so much time to break his silence and condemn such an act. He says he would quit as the CJI if the independence of the judiciary is compromised. But the question here is that would his quitting make things any better, when the damage has already been done?

Besides the CJI, where were the rest of the judges and lawyers all over the country? Why did the judiciary as a whole not rise to protest against such an act of highhandedness of the executive? Where are the Chaglas and Palkhivalas of today to prevent the judiciary from yet another ‘emasculation’ since emergency?

The time has arrived for India to see its own Chief Justice battling as an advocate for the independence and the autonomy of that very judiciary which he heads. What justice will the judiciary impart when the highest kind of injustice has been done to the judiciary itself, leaving it lamenting helplessly, the loss of a prospective judge like Subramanium. Needless to say, Subramanium’s withdrawal of consent for judgeship is definitely a loss not just for the judiciary alone, but for the entire country.

Under the barely-a-month old Modi regime, non-NDA Governors have been asked to resign, and incumbent heads and members of top statutory bodies like the National Disaster Management Authority, National Commission for Women, National Commission for SCs and STs weren’t an exception either. The Modi Government has made it amply clear through such acts that it is not going to tolerate any person who does not toe its line in any topnotch Constitutional post. After making such audacious moves, it isn’t surprising that it did not spare a judicial appointment either!

No matter how many guesses we make about the actual reason for the non-returning of the file containing Subramanium’s candidature, now there is no use lamenting. Instead, every possible move should be taken that no such lawyer whose name has been recommended for judgeship should be subject to such malicious humiliation by the executive ever again, after such an episode.

The battle between the executive and judiciary goes on, and the executive continues to make all possible attempts to trammel and subvert the autonomy of the judiciary. However, the judiciary must rise and exalt its own independent existence, under all circumstances. If this continues, achhe din (good days) are surely not coming for the Modi Government; instead, he would face virulent criticism from all quarters.

(The writer is an advocate in the Orissa High Court)