• A ‘committed judiciary’ would spell the end of checks & balances in a democracy

“The SCC system, like the proposed NJAC, or the systems now prevalent in advanced democracies can never be perfect, but it is the best in the circumstances. The judges, at least, are not political, though they have their own preferences. A constant criticism of the SCC system is that it is opaque. Only the five senior-most judges who constitute the Collegium can tell why one candidate has been selected and the other rejected, but when the SCC decided to meet that criticism by placing the papers before the public, Rijiju took offence at this unexpected move and pleaded that inputs by the IB and other Central Intelligence agencies should never be made public.”

The Collegium system, like the proposed NJAC, or the systems now prevalent in advanced democracies can never be perfect, but it is the best in the circumstances.

Indira Gandhi was a born leader. Narendra Modi is a born leader. Indira wanted a committed judiciary. Modi wants a committed judiciary. Indira went about superseding judges who she knew would not support her policies if those policies crossed the line drawn by the Constitution. Modi is more subtle in achieving his goal. He has Kiren Rijiju, his Law Minister, to ensure that all judges raised to the Bench in High Courts and the Supreme Court come to heel!

The Collegium system, like the proposed NJAC, or the systems now prevalent in advanced democracies can never be perfect, but it is the best in the circumstances. Rijiju had done well in the sports and other ministries he was heading, but in the law and judiciary portfolio, he continues to convince, unsuccessfully so far, the Chief Justice and his brother judges of the Supreme Court to shift the balance of power to appoint High Court and Supreme Court judges from the Supreme Court’s Collegium (SCC) into the hands of the government.

In Dr DY Chandrachud, he has met a doughty opponent who cannot be taken for a ride. Every few days, Rijiju tries a new tack. He has to prove himself to the ‘one who decides his future’. I wish him well but not at the cost of the people. The citizens of the Republic must be assured of an independent judiciary. A ‘committed judiciary’ would spell the end of checks and balances that a democracy needs to be assured of a modicum of justice. If the judiciary is enslaved like some other institutions that have already succumbed or about to succumb (some against their wishes), this country will be on its way to become an autocratic state. We are already being told what we should wear, what we should eat and who we should love. If the judiciary ceases to think like it should — according to the law and the Constitution — our very life and liberty will be at stake.

Justice Madan Lokur, formerly of the SC, has in an essay in an online publication titled , ‘The Government Wants a Committed Judiciary — And Could be Close to Getting One’, spelt out various untruths that Rijiju has been guilty of in the course of his campaign to malign the SCC system.

The SCC system, like the proposed NJAC, or the systems now prevalent in advanced democracies can never be perfect, but it is the best in the circumstances. The judges, at least, are not political, though they have their own preferences. A constant criticism of the SCC system is that it is opaque. Only the five senior-most judges who constitute the Collegium can tell why one candidate has been selected and the other rejected, but when the SCC decided to meet that criticism by placing the papers before the public, Rijiju took offence at this unexpected move and pleaded that inputs by the IB and other Central Intelligence agencies should never be made public.

Well, he cannot have it both ways. If he wants to hide the reasons for the government’s distrust of certain nominees, it would help the government to say that it had rejected the nomination for reasons spelt out by the IB. That would dispel the popular understanding that the government wants only judges who toe its line and not those who are fair and just. Obviously, the government does not want to be told that its Intelligence agencies are also eager to toe its line! The disclosures that the SCC has now made because of its spat with the Law Ministry show that the objections voiced in the Intelligence reports are on the lines required by the government.

Ever since Justice Chandrachud became the CJI, the Law Ministry, with Rijiju to guide it, has become particularly hostile. Any recommendation that is reiterated after reconsideration on the government’s urging has to be accepted in toto, according to rules. The government has been dragging its feet, making it abundantly clear that certain independent-minded legal luminaries are ‘persona non grata’.

Justice Lokur has mentioned the case of Aditya Sondhi, who withdrew his consent when his appointment to the SC Bench was kept in cold storage for more than a year. The inter-High Court transfers of Chief Justices are also kept in cold storage if the government frowns on certain judges, like Justice Muralidhar, whose only fault was that he insisted on FIRs against a minister and other BJP bigwigs when they made hate speeches quite openly and brazenly in Delhi before the riots began three years ago.

Justice Lokur also mentioned about the case of legal luminary Gopal Subramanium, who withdrew his consent to serve as a judge of the Supreme Court after the government stalled his appointment by blatantly splitting the recommendation of the SCC, accepting one name and keeping quiet over the other, thus making it known that the government did not want a judge who was not in sync with its policies.

Justice Lokur proved through his dissertation that Rijiju’s argument that India was the only country in the world where the government had no part to play in the selection of judges was totally false and misconceived. The examples he quoted proved the fact that the government was, in fact, neck and shoulders involved in the entire exercise. Moreover, said Justice Lokur, the procedure laid down for the appointment of judges to the High Courts and the Supreme Court clearly shows that the government has its fingers immersed in the pie at various stages and there is no question of keeping them out. In fact, the final word is with the Law Ministry itself because by sitting over the recommendations of the SCC in many inconvenient (to the government) appointments and expediting others, it has proved that the final say is of the government, and the government alone.

The government obviously does not want independent-minded judges and it is only the present CJI and his senior colleagues, now in the SCC, who are effectively ensuring that this last bastion of democracy does not capitulate during their term in office.

(The author is a former governor and a retired IPS officer)