It's a move to subjugate autonomy of judiciary

(As published in The Pioneer on 21 Aug 2014- www.dailypioneer.com/state-editions/bhubaneswar/its-a-move-to-subjugate-autonomy-of-judiciary.html)

As evident from Chief Justice RM Lodha’s Independence Day speech, the judiciary is struggling for its own “independence”, after the Parliament hastily passed the National Judicial Appointments Commission (NJAC) Bill, 2014 coupled with the 99th Constitutional Amendment, which is now just a step short of becoming law.

Clearly intending to subjugate the autonomy of the judiciary by bringing such Bills, Prime Minister Narendra Modi seems to surpass ex-PM Indira Gandhi when it comes to usurping as much power as possible treating judges as puppets. The new Government had just recently given a glimpse of such an intention when it unilaterally segregated Gopal Subramanium’s candidature for Supreme Court judgeship despite the collegiums recommending his name. And then came this Bill, which would legitimise such actions in future. Needless to say, India lost a prospective judge par excellence in Subramanium, and no clear reasons were cited for his segregation by the Government, which is now preaching sermons on transparency through this Bill!

Justice HR Khanna had told his sister before delivering his judgment in the Habeas Corpus case, “I have prepared my judgment, which is going to cost me the Chief Justiceship of India.” He resigned the day he was superseded for the post of CJI by Indira Gandhi. What Gandhi did to Khanna then, Modi through this commission can easily do to any judge, if this disastrous Bill is enacted.

Not just Subramanium and Khanna, many such instances can be cited where the chances of judgeship of some brilliant people have been guillotined by the executive. After tolerating several such instances of abuse of power by the executive, the judiciary was compelled to introduce the collegium system in the Second and Third Judges cases to secure to itself the authority to appoint judges.

Article 50 of the Constitution makes it obligatory for the State to take steps to separate the judiciary from the executive in the public services. This implies that an element of insulation of the judiciary from the mighty clutches of the executive is absolutely indispensable to ensure its independent functioning.

Let us now examines how such Bills undermine the independence of the judiciary.

First, a Law Minister introduced the Bill which provides for he himself (a Law Minster) to be one of the judges to choose a judge. So, if he appoints three-four judges today and loses his Ministership tomorrow, when another party assumes power, he might resume practice and appear before one of those very judges he chose to appoint. Further, he himself and his brethren are in no way immune to the jurisdiction of the SC and can be tried like any other citizen. ‘No one can be a judge in his own cause’ is a basic principle of natural justice which would be violated in both the above instances, if this Bill is enacted.

Secondly, the provision for appointing two ‘eminent persons’ as Members of the Commission, one of whom would belong to SCs, STs, OBCs, Minorities or Women, is totally repugnant to the spirit of judicial independence. Talking of persons of eminence, let us not forget the recent episode of ‘eminent persons’ like Sachin Tendulkar and Rekha who have shown their ‘eminence’ by their prolonged absence in the Rajya Sabha. Imagine if such persons show such kind of ‘eminence’ in judging and appointing judges, which requires responsibility of the highest order, far more than that of a nominated Rajya Sabha member!

Thirdly, how will such ‘eminent persons’ judge the ‘ability’ and ‘merit’ of a judge if they aren’t lawyers or jurists? Merit of a judge can be judged from the judgments he delivers. Suppose a judge convicts an accused on the basis of a plea which the victim is stopped from pleading and on the basis of circumstantial evidence. Imagine if an eminent social activist appointed as a member considers the case of that judge, he will be bound to be well-versed with the intricacies of the Evidence Act to be able to adjudge the ‘merit’ of that judge. Unless he does that, technically speaking, it will be like a matriculate judging and evaluating PhD candidates!

Fourthly, if any two among the Law Minister and the eminent persons choose to exercise their veto, the other three judicial members will be unable to select a deserving candidate. Such unfettered power of veto to non-judicial members is certainly prone to be misused.

Usually, in most cases, like writs, etc., the relief sought is all against the government. But if such Bills become law, a judge would think twice before deciding against the government or any social activist or any other eminent person because if he does so, the ruling or opposition party or the head of an NGO can settle scores against that judge by exercising veto against him. So, a judge has to please all of above by his judgments, unless he’s prepared to sacrifice his judgeship like Khanna or Subramanium.

No wonder, both the Bills of such national importance were passed in a hush-hush affair by MPs of all parties in no time with absolute majority. The Congress could not protest because the idea of establishing such a commission was mooted by itself, and the rest of the Opposition was weaker still. Politicians regardless of their parties have scores to settle against the judiciary, for it is the judiciary alone which can convict them for all the black money they launder during elections and in various criminal cases pending against many of them. Forget the general public, the fact that even members of the Bar and Bench were not adequately consulted by the government or the Standing Committee of MPs, barring a few, was no surprise either.

Establishing such kind of a commission for remedying the defects of the collegium system is like using outside dirt to clean the dirt already existing inside one’s house, which will end up dirtying the house even further!

Many are supporters of creation of the NJAC because of the popular argument that nowhere else do judges appoint judges, and it is usually the executive which appoints judges, like in the US and the UK. Well, are we Indians just a bunch of copycats? Should we have an NJAC just because other countries have it? Don’t we have a collective wisdom of our own to act upon and set up a system on our own? Such commissions have barely been a success in other countries.

It can be suggested out of common prudence that for judging a judge, one has to be either a judge or someone better than a judge. Hence, if such a commission has to be established, barring the three sitting judges as ex-officio members, it must contain persons of equal stature like retired judges and legal luminaries (who may or may not be from the Bar) who in the opinion of the President are eminent or ‘distinguished’ jurists and otherwise eligible for SC judgeship as provided under Article 124 (3) (c) of the Constitution, and no one else as members, to ensure judicial independence.

Even if both the Bills are ratified by the State legislatures, the outcome of the PILs challenging their Constitutional validity may put the legislature and judiciary at loggerheads in continuance to their already existing age-old tussle.

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

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)

God, give us men!

Josiah Gilbert Holland penned these lines in one of his poems in 1872:-

“God, give us men! A time like this demands

Strong minds, great hearts, true faith and ready hands;

Men whom the lust of office does not kill;

Men whom the spoils of office can not buy;

Men who possess opinions and a will;

Men who have honor; men who will not lie;

Men who can stand before a demagogue

And damn his treacherous flatteries without winking!

Tall men, sun-crowned, who live above the fog

In public duty, and in private thinking….”

Such are the men we need today. Such are the men we need to be judges today. Was Gopal Subramanium such a man? Asking such a question has now been rendered futile by the Narendra Modi Government, after it scuttled Mr. Subramanium’s chances of elevation as a Supreme Court judge.

Of course, when an individual is being considered for appointment to such a top-notch constitutional post, scrutiny of every possible kind should be mandatorily done. 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 Mr. Subramanium’s candidature for judgeship. But in view of the manner in which it was handled by the Modi Government, mala fide is writ large.

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

Let us not forget that it was the same Mr. 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 and must be execrated by all possible means.

The attack of executive on the autonomy of the judiciary probably started in 1973 when it was none other than ex-PM Indira Gandhi who was heavily criticized for appointing Justice A N Ray as the Chief Justice of India, deriding the long-standing convention of seniority, by superceding three other SC judges, who were senior to Justice Ray.

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

The Modi Government ruining Subramanium's candidature for judgeship of the Supreme Court 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 Mr. Modi seems to be determined to outshine Mrs. 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 the 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 dictatorship 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 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 Mr. Subramanium. Needless to say, Mr. 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 top-notch constitutional post. After making such audacious moves, it isn’t surprising that it did not spare a judicial appointment either!

As Mr. Modi is all set to crown his own close aide Amit Shah as the BJP’s new President, it is an open secret that Mr. Subramanium was the amicus curie in the Sohrabuddin fake encounter case, in which Shah faces charges of murder of Sohrabuddin and his wife. This probably was the primary reason why Mr. Subramanium’s candidature invited the ire of Mr. Modi and company.

No matter how many guesses we make about the actual reason for the non-returning of the file containing Mr. 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.

Mr. Subramanium was a man, whose chances of becoming a judge now stand marred due to the Modi government. If this continues, achhe din (good days) are surely not coming for the Modi government, instead, criticism most definitely is. But if not Mr. Subramanium, then God, give us men! Men to rule us, to serve us and to judge us!