Redrawing and reaffirming a rekha

Faizan Mustafa

WE had to take into account what was a judge's basic outlook on life….was it not right to take all these aspects into consideration? was it not right to think in terms of more suitable relationship between the court and the government? …In appointing a person as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life and his politics", said M. Kumaramanglam, a cabinet minister in Indira Gandhi's government, in Parliament on May 12,1973 defending the appointment of A.N.Ray as the Chief Justice of India superseding three senior judges. Supersession may not be possible anymore but the Narendra Modi government desperately wants a major say in the judicial appointments in the name of so-called "merit" or "integrity".Thus the stand -off between the judiciary and the government and the routine criticism of the Supreme Court.

For decades, November 26 was celebrated as "Law Day" to commemorate the adoption of Indian Constitution by the Constituent Assembly on  November 26,1949. Last year the government or chief executive ordered it to be celebrated as “Constitution Day” though Shakespeare might have said approximately 400 hundred years ago what is in a name. But name does matter in our country and, therefore, we keep changing the names of cities, roads, planning commission etc.  A two-day special session of Parliament was held with debates on the Constitution and its ideals. This year, the occasion was used by the Union Law Minister and the Attorney-General to show the world's most powerful court in poor light, While Ravi Shankar Prasad was full of praise for the high courts and criticised the Supreme Court for its ADM Jabalpur decision, wherein the apex court had held that during the suspension of right to life ie Article 21, there is no right to habeas corpus. 

True nine high courts showed greater courage in upholding the right to life and personal liberty but then Supreme Court judges are human beings and may go wrong. Even the US Supreme Court had decided Dred Scott in 1854, denying all rights to blacks. He also asserted that in the last one year as many as 120 judicial appointments were made, which is highest in terms of annual average. How many of them were mere confirmations is not known. Moreover, since due to NJAC last year appointments could not be made and those in pipeline were simply cleared this year, thus this high number. What to say of appointments, even transfers have not been cleared by the government. The transfer of the Uttarakhand Chief Justice KM Joseph to Hyderabad, who had struck down the imposition of President's rule, is pending for seven months. Mukul Rohtagi went a step further and asked the Supreme Court to do introspection and not cross the lakshman rekha.  It was a clear message to the highest judiciary that they should behave. The BJP which had welcomed just a few years ago the “caged parrot” observation  about the Central Bureau of Investigation from a Supreme Court bench now seems to be interested in making the Supreme Court itself a "caged parrot." The observations of the Law Minister and the Attorney-General are not isolated cases of criticism. These observations do reflect the attitude of the government about the judiciary. 

On May 12, 2016 when the Supreme Court cleared the way for Harish Rawat to return as Uttarakhand Chief Minister, Finance Minister Arun Jaitley speaking in Parliament on Finance Bill said: “Step by step, brick by brick, edifice of legislature is being destroyed” by the judiciary. In another statement, he referred to judiciary in terms of "tyranny by the unelected." It seems the government wants judges like Justice Wills who in Lee vs Bude had observed: “We sit here as the servants of the Queen and Parliament.” The Attorney-General must remember supremacy of Parliament was the first principle of the British constitution while in India we believe not in the supremacy of Parliament but in the supremacy of the Constitution.

This does not mean that this author is against the judicial accountability or evaluation of their performance. To place judicial performance beyond scrutiny would be myopic as liberty without accountability is freedom of the fool. Power without responsibility is the anti-thesis of constitutionalism. Accountability of public officials, including that of judges, is the very essence of vibrant democracy. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary and institutional responsibility. As a matter of fact, neither judicial independence nor judicial accountability is an absolute ideal. Both are purposive devices designed to serve greater constitutional objectives. Judges must appreciate that it is not an end in itself. In fact it is rather an instrumental value defined by the purposes it serves.

We need intense deliberations and discussions to evolve objective parameters to assess the quality of judgments. MoP drafted by the Modi government talks of “integrity” and some 37 names recommended by the collegium have been returned by the government due to concerns about “integrity”. Of course, the Supreme Court did not agree with the government and has recently reiterated those names. As per the existing law, the government is now bound to approve these names. 

While the Modi government's effort to control the judiciary is clearly evident. The Congress should not criticise the Prime Minister on this issue. What to say of Indira Gandhi, who handpicked number of judges, even Jawaharlal Nehru asserted in the Constituent Assembly:  “Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where, the future of the community is concerned, no judiciary can come in the way. And if it comes in the way ultimately the whole constitution is a creature of Parliament.”

One hopes that in the name of "integrity" while appointing judges, we would not look at the “ideology” of judges or their outlook to life or their politics. Even in the United States, there is heightened focus on “ideology”, which leaves the impression with the public that judges are not independent and impartial, but ideological and partisan. Judges are either Republican or Democrats or conservative or liberal. Politics plays a crucial role in judicial appointments and Presidents do succeed in getting judges of certain stripe appointed in the Federal Supreme Court. Let us not compromise the independence of the judiciary. It is the people's right to have an impartial and, above all, an independent judiciary.

The author is Vice Chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal.