The Implication of the Threat to Judiciary’s Independence
By Prabhakar Sinha
Both the Law Minister Kapil Sibal and the Leader of the BJP in the Rajya Sabha, Arun Jaitley, have attacked the Supreme Court for inaction against Justice Mr A.K. Ganguly without pointing out its omission. In fact, Arun
Jaitley has reportedly insinuated that the apex court would have acted differently had the case involved a politician. Their aim was not to right the alleged wrong of the apex court but to demoralize the judiciary with a
purpose. The history of attempt to demoralize and undermine the independence of the judiciary and make it subservient to the executive (government) is not new or recent. As early as in the early seventies Indira Gandhi gave an open call for a ‘committed judiciary’, i.e., a judiciary not committed to the constitution but to the government. She was not content to give the call only but vigourously pursued her sinister goal. When the
Supreme Court rejected the claim of her government (in Keshavanand Bharti v State of Kerala) that Parliament had unfettered power to amend any part (including the Fundamental Rights) of the constitution by a 7:6 majority,
she retaliated by superseding three of the senior judges who were part of the majority and appointing Justice Mr A.N.Ray as the Chief Justice of India. The superseded judges resigned. The message given was loud and clear:
either obey or be prepared to pay the price for independence. The message did not go in vain. Its effect was clearly seen when the Supreme Court held (ADM, Jabalpur v Shivkant Shukla, 1976) that when Art.21 was
suspended during the emergency, the right to life and personal liberty itself was suspended and a person had no legal remedy even if a policeman kills him for personal reasons. It was a frightened judiciary which sacrificed
the life and personal liberty of the people at the altar of the political masters. The fear was not the threat to their life or personal liberty, but related to their career and also of unenvisaged consequences. Justice Mr H.R. Khanna was the only judge to have the courage of conviction to give a dissenting judgment disregarding his personal interest. Indira Gandhi punished him by superseding him and elevating a judge junior to him as the Chief Justice of India.
When Indira Gandhi returned to power in 1980, the judiciary again appeared to act under her fear. Though witness to the evil consequences of the absolute power of appointment and transfer of High Court judges and
appointment of Supreme Court judges remaining in the hands of the executive, it still held (S.P.Gupta v Union of India, 1982) that the President had the unfettered power to disregard even the unanimous recommendation of
the others concerned (Chief Justice of India, the Chief Justice of the High Court concerned and the Governor of the concerned state in the appointment of H.C. judges and that of the CJI in appointment of judges of S.C. and transfer of the judges of H.C.). The bench was headed by Justice Mr P.N. Bhagwati, who was one of the judges who had given the disgraceful judgment depriving the people of India of their right to life and personal liberty. He had also written a personal letter to Indira Gandhi eulogizing her when she returned to power in 1980,which was unbecoming of a judge of the apex court. Following this judgment, the government used its power to pack the higher judiciary with men of straw with unwelcome consequences for the people.
The situation changed in 1993 (S.C Advocates on Record Association v Union of India), when the Supreme Court snatched the power of appointment to higher judiciary as well as of transfer of High Court judges from the executive and arrogated it to itself. It held that the recommendation of the collegium consisting of the Chief Justice of India and four senior-most judges of the Supreme Court would be binding on the President. It is
widely believed that this system has resulted in large-scale appointment of undeserving persons to High Courts, many of whom are related to judges. Taking advantage of the dissatisfaction with the present system the
political class has initiated a move to change it by amending the constitution and vesting the power of appointment to higher judiciary and of transfer of High Court judges to a Judicial Appointment Commission. The Judicial Appointment Commission Bill, 2013, which has already been passed by the Rajya Sabha provides for a Judicial Appointment Commission consisting of the Chief Justice of India, two senior-most judges of the Supreme Court, the Law Minister and two eminent persons selected by a panel consisting of the Prime Minister, the Chief Justice of India and the Leader of the opposition. There is also a dangerous and sinister provision that this provision can be modified or altered by Parliament by an ordinary law, which means that it can also be changed by promulgating an ordinance. Thus at any time the composition of the Commission can be changed by a government which wants to have supremacy in the appointment of judges of the High Courts and the Supreme Court. Even under the present bill the primacy of the judiciary has been taken away. There will be three judges and three others including the Law Minister without the CJI (Chief Justice of India) having a casting vote. Consequently, judges appointed by the JAC (Judicial Appointment Commission) will be beholden to not only the judges but also politicians.
Ideally, the judges should be persons of unimpeachable character, but if all of them do not possess that high a moral character and many are amenable to influence, the influence of politicians would be far more dangerous
than that of the judges. It is simply because the judges have to deal with political issues and politicians almost on a daily basis where political influence can have very baneful consequences which is not the case with the
judges.
The independence of the judiciary is under greater threat now than in the past. When the Congress had the monopoly of power and the opposition’s prospect of coming to power appeared remote, they needed an
independent judiciary for their own security. Indira Gandhi’s fear made them stand for an independent judiciary, constitutional values and human rights. The weakening of the Congress Party and most of the major opposition
parties in power in states, the political class has a common fear of an independent judiciary. The fear now unites them in seeking the common goal of weakening the judiciary.
When the apex court held that the candidates seeking election to any legislature must furnish information regarding their educational qualification, income and criminal cases against them at the time of filing their nomination papers, they joined hands, and the Parliament inserted a provision in The Representation of the People Act asking the candidates to disobey the courts and the Election Commission and furnish only information required under the Act and the rule. It was only after the apex court on the petition of the PUCL held the provision to be unconstitutional that the candidates furnished the information. Recently, when the apex court held that a legislator ceased to be a member of a legislature if convicted of any offence and sentenced to
imprisonment for not less than two years, they again joined hands to undo the judgment by amending the Act. It did not materialize due to their immediate conflict of interest. The political class has a common interest in
weakening the judiciary and making it pliant, because they have the same policy of robbing the natural resources of the country to enrich the already filthy rich and letting loose a reign of terror against the poor who
protest. They all want a judiciary which would declare Salwa Judum to be legal, would declare the loot in 2G scam, the Coalgate and other scams a policy matter beyond its jurisdiction as publicly claimed by the Prime
Minister (Man Mohan Singh). They want a demoralized and pliant judiciary acquiescing in their loot and plunder and unlawful repression of those who complain, or protest against their victimization.
An independent judiciary may not be crucial for the judges, but it is very crucial for the common man. The judges are public servants appointed under certain terms and conditions. If their service conditions are lawfully
changed, a few may quit but the rest will continue to do their job. It is for the society to create conditions for them to be able to act independently and impartially and do their job without fear. It is for them to do their job
honestly rising above temptations. The judges can speak only through their judgment and are not expected to allow their self-interest to determine their judgments. It is in the interest of the people to protect the independence of the judiciary to ensure that the judges may function without fear or favort.
The judgment of a scared judiciary leaving the life and personal liberty of the entire nation at the mercy of an authoritarian ruler (ADM Jabalpur) with its evil consequences should act as an eye opener leaving no room for
indifference or complacency to the question of the independence of the judiciary.