With due respect, your lordships, here I thought it important to remind us all that for Rule of Law to prevail, judicial independence is of prime necessity. It has to be ferociously independent and be seen as such.
Given the importance of fair judicial administration in the largest democracy, it is not a hidden fact now that the Supreme Court of India is currently in the middle of its worst credibility crisis and, this time, it is because of its own making. For a court that has often received appreciation – and criticism – for being too activist in the past, it appears incapable of addressing even the most basic issues of fundamental rights and constitutional rights.
The Indian judicial system, once known for its credibility even in the worst of times, in the past few years appears to have lost all its strength. Though certain incidents of corrosion have happened in the past but now it is happening at a different level. Especially in instances of countering the ruling government and its murky handling of high-profile cases, the Supreme Court of India has acted not more than a mute spectator.
Before I delve into the legacy of Supreme Court of the present times and its probable reasons, a bit of recounting of recent events might prove helpful. In an unprecedented event, in January 2018, four senior-most judges of the apex court of India came before the press with the revelation that the condition of the Supreme Court was worrisome, so bad that it could destroy Indian democracy. One of the four judges, Justice Chelameswar, along with Justice Ranjan Gogoi described it as an extraordinary event and said “sometimes administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months… unless the institution is preserved, democracy will not survive in this country.”
The Supreme Court’s overall handling of the sensitive Rafale case, relying on information submitted in a sealed cover, in which the judgement made references to a CAG report examined by the parliamentary Public Accounts Committee – even though such a report did not exist – led to a huge controversy, and the Supreme Court’s image taking a hit.
In November 2019, the Supreme Court of India sought to end a decades-old dispute over the ownership of a plot in Ayodhya. Taking a pro-government stance, the court unanimously decreed the disputed land to infant deity ‘Ram Lalla’, while directing the central government to set up a trust within three months to build a Ram Mandir. It begs the question whether a court can direct a secular government to get directly involved in building a religious institution. The BJP carried out a deeply polarising campaign in Delhi and other state elections over the judgement. Ram temple has been at the core of the BJP’s Hindu nationalistic politics for three decades now.
Moreover, from delaying the hearing of abrogation of Article 370 to initiating contempt proceedings against Rahul Gandhi, to allowing NRC in Assam, the Supreme Court of India appears to have compromised on the noble principles of independence and impartiality of the judiciary. The judiciary in India appears to have adopted a pro-government stance and surrendered its offices to use of the executive and legislative organs of the government. It appears incapable of asking even basic questions of the Narendra Modi government. The Supreme Court of India has remained in the news headlines for its not-so worthy judgements or the lack of them.
However, this isn’t the problem with the judiciary at large. The High Courts in India have been more than willing and capable of doing their job in such testing times. One example is Delhi High Court judge Justice Muralidhar’s handling of the plea seeking safe passage of the injured victims of Delhi Riots in February. The judge directed Delhi Police to ensure the safe passage of the injured by deploying all the resources and making sure that they receive immediate medical treatment.
From granting bail to anti-CAA protesters to upholding the right to protest peacefully, to ensuring no accused goes unrepresented in the teeth of majoritarian violence, the Karnataka High Court has stood with spine in these challenging times.
The Allahabad High Court held the Uttar Pradesh government accountable for police violence on protesters, ensured bail for unjustified arrests, and held extraordinary sittings to strike down the Yogi Adityanath government’s vengeful actions against protesters.
It is no more a hidden fact that the most of the judges in the apex court for one or the other reason have resisted in giving any judgement against the taste of the Modi-led government. Most of the jurists regard it as mutual bonhomie between executive and judiciary. The executive keeps giving plush post-retirement jobs to judges as a quid pro quo for their judgements. For example, P. Sathasivam’s acceptance of the post of Governor of Kerala, in 2014, only 4 months after he retired as Chief Justice of India is seen as inappropriate and as an act that compromised the independence of judiciary.
In another recent move that raised fresh questions about the debilitating nature of judicial independence, the Govt of India in March 2020 nominated former Chief Justice of India Ranjan Gogoi – arguably the most controversial CJI of recent times – as a member of Rajya Sabha within 4 months of his retirement. Gogoi himself, in 2018, had remarked that post-retirement appointment of judges in tribunals, etc, was a scar on judicial independence.
Free-spirited Collegium System?
The current lot of judges are among the first generation of judges to have made it to the high courts and to the Supreme Court through the collegium system of appointment. This system, that was supposed to ensure independence from the executive, does not in any way ensure that judges of integrity or ability are appointed. The system does not even attempt to ensure enough diversity in appointments, preferring to indulge in occasional acts of tokenism. This has led to a Supreme Court that is now composed of judges who have entered the top court because of their ability to conform, and due to their caste, class and gender – with a few notable exceptions.
I’m of the opinion that ceaseless proximity to Delhi – the seat of political power, clouds a judge’s sense of constitutional morality. Such degree of nearness with the executive will cast its shadow on what the judge thinks, says, and does. Whether it is securing sinecures after retirement, or the desire to earn more money, or protection from a criminal law, Supreme Court judges seem to get very comfortable with the executive organ. But before the scenario gets worse, one thing is clear: that it is necessary for the institution, at this stage, to explore the basal structural or administrative flaws within itself that have led to it repeatedly failing when it has been needed the most.
—The writer is a student at School of Legal Studies, Central University of Kashmir. [email protected] The views expressed are the writer’s and not Kashmir Reader’s.