Pavan K. Varma | To keep democratic project safe, insulate the judiciary

Recently, the Supreme Court (SC) has given some strong judgments assuring citizens that it remains a vigilant sentinel to guard the Constitution. But challenges remain.

On March 5, 2024, Justice Abhijit Gangopadhyaya, of the Calcutta high court since 2018, resigned and announced that he was joining the BJP with which, he said, he had been in touch for some time. This public confession, raised a deeply troubling question on whether, in accordance with his constitutional oath of impartiality, he had been fair and unbiased, especially in matters relating to the TMC?

Perhaps not. In April 2023, he had given an interview to a Bengali news channel on a matter still being adjudicated by him. The Chief Justice of India (CJI), D.Y. Chandrachud, had to issue a reprimand saying that “judges have no business granting interviews on matters which are pending”.

But the blurring of the line between politics and the judiciary is not new. Justice V.R. Krishna Iyer, became a Supreme Court (SC) judge, although initially in active politics. K.S. Hegde was a Congress Rajya Sabha member, when he resigned to join the Mysore HC bench, and was later elevated to the SC, only to join politics again and become the Speaker of the Lok Sabha in 1977. CJI K. Subba Rao also resigned to become the Opposition candidate for the presidential elections in 1967.

In any democracy, an independent judiciary is imperative. Equally, in every democracy, governments, the largest litigants in court, want a more pliant judiciary. In the 1970s, Indira Gandhi openly pushed for a “committed judiciary” that endorsed the agenda of the ruling party. In this pursuit, she brazenly superseded “inconvenient” judges, while rewarding the obedient.

However, in 1981, the SC curbed the executive’s powers. It ruled that the appointment of judges must be done in consultation with the CJI. In 1993, the SC went further, stating that “consultation” meant “concurrence”, which thus made the the approval of the CJI mandatory. In 1998, the SC instituted a “collegiums” system, consisting, in addition to the CJI, four senior-most judges of the SC. In 2014, the government enacted the National Judicial Appointments Commission (Act), which increased the role of the executive, but this was struck down in 2015 by a five-judge SC bench as inimical to judicial independence.

But the government had another card up its sleeve. Under the present system, when the SC collegium recommends names for appointments and transfer of judges, the government can send the names back, but if any of these is reiterated, it has to be complied with. However, no time limit is specified for the government to respond. This means that the collegium’s recommendations can be delayed indefinitely. In fact, in March 2021, the SC warned that dozens of its recommendations, including those reiterated, were pending with the government for six to eighteen months. In spite of the warning, the government’s behaviour has not changed, and there are many recommendations of the collegium which lapse, or become redundant, in the absence of a timely response. This also leads to widespread vacancies in the HCs, in a country where lakhs of cases are pending disposal, and over 70 per cent of those in jail are undertrials whose case has not come up for hearing.

In this ping-pong battle, what is crucial is to preserve the independence of the judiciary, which is the last bulwark of citizens against authoritarian governments. To ensure this, it is essential that judges are not beholden to the government. This requires that retiring judges of the SC or HC should have a cooling off period for a minimum of two years before they can accept any assignment from the government.

Unfortunately, such a provision does not exist. In 1953, Justice Fazl Ali, was appointed Governor of Orissa after retirement; in 1958, M.C. Chagla, a sitting judge of the Mumbai HC, was appointed as Ambassador to America; in September 2014, for the first time a retired CJI, P. Sathasivan, was appointed as the Governor of Kerala; and in 2020, CJI Ranjan Gogoi, who delivered the Ayodhya judgment, was nominated after retirement to the Rajya Sabha. In addition, there are innumerable tribunals, to entice retired SC judges. CJI Mohammed Hidayatullah (1968-70) was an honourable exception, who openly resisted the blandishments of the government. He was against the cancellation of the privy purses to the erstwhile descendants of the royal families in India. The government offered him the post of Lokpal after retirement, or a nomination to the International Court of Justice, but he refused. He became the Vice-President of India only nine years later. Another outstanding exception was SC Judge H.R. Khanna who, in spite of pressure and enticements from the government, stood his ground during the Emergency (1975-77), and was the sole judge to give a dissenting opinion when the issue of arbitrary arrests came to the apex court. In his dissenting judgment he wrote: “What is at stake is the rule of law… the question is whether the law speaking through the authority of the court shall be absolutely silenced or rendered mute.”

The collegium system is not flawless. Its critics have rightly claimed that its working system is opaque and that it lacks transparency, where the biases of the judges in the collegium have no checks and balances. In fact, India is perhaps the only country in the world where judges appoint judges. For instance, in the UK, there is a Judicial Appointments Committee, consisting of three judges plus twelve members selected through a process of open competition. Similarly, in the US, judges are appointed by the President, but on the advice and consent of the Senate. However, to insulate judges from government inducements, there is no retirement age for them.

While the current collegium system can be fine-tuned to reduce its opacity, it is still infinitely better than a judiciary controlled by the executive. Without an independent judiciary, these lines of the poet Ameer Qasalbash will haunt ordinary citizens: “Usi ka shehar, wohi muddai, wohi munsif; Hamein yaqeen tha hamara qasoor nikle ga: It is his city, he is the witness, and he the judge; I knew that I would be found guilty.”