[dropcap]T[/dropcap]HE downgrading of the credentials of India’s constitutional democracy has been a subject of severe domestic and globalcritique in recent times. Nevertheless, the Indian diplomatic positions in the global fora continue to emphasise upon its track record as a vital constitutional democracy with sound judicial safeguards to protect human rights. When this contradiction is analysed from a historical perspective, the warning signs for the sustenance of the constitutional democracy are notable.
The period of Emergency (1975-76) was a dark phase in the Indian history and it cautioned the future to not follow certain paths if India were to uphold the true principles of constitutional democracy. However, the present seems to be ignoring the guidance of the past and we witness a virtual reappearance of the Emergency-era executive dominance of the judiciary, which factually merges the entire power within one entity, i.e. the ruling political party. Rupturing judiciary is one of the main facets of the larger democratic decay happening on multiple levels in India: (1) crushing parliamentary deliberations (see here, here and here); (2) faltering institutional independence (see here and here); and (3) shrinking space for public expression and dissent (see here and here).
Threat to democracy
This phenomenon is not specific to India, but is universal. Tarunabh Khaitan has correctly identified the “elected political executives as the chief threat to democracy today.” This article is an endeavour to revisit the past, compare it with the present and make aware the holder of the Indian sovereignty of the collapsing separation of powers.
Article 124 of the Indian Constitution governs the process appointment of the Supreme Court judges and it vests the power of appointment with the President to be exercised after consultation with the judiciary. In the initial years of the Republic, the executive rejected multiple recommendations of the judiciary for the prospective appointees of the constitutional courts. This led the Law Commission of India, functioning under the chairmanship of Late M.C. Setalvad, to opine that ‘the Constitution endeavoured to put judges of the Supreme Court above executive control.’
A new era began in the Indian democracy with the appointment of Indira Gandhi as Prime Minister of the country. In the background of multiple Supreme Court rulings against the Executive (for instance, see here and here) and with the sense of authoritative rule, full blown court packing attempts were made during 1970s. Constitutional scholar Granville Austinhas commented that ‘this was a grievous blow to the democratic constitutionalism, for, by attempting to make the court obedient to her governance, she was unbalancing the power equation among the three branches of the government and distorting the seamless web.’
With the realization of excessive executive influence, compromised judicial independence and most importantly, the retirement of the judges appointed in the 1970s, the Supreme Court voiced for the reconsideration of decision in the Gupta case in Subhash Sharma v. Union of India (1990). While doing so in Supreme Court Advocate-on-Record Association v. Union of India (1993), the Court innovated the Collegium system of appointment, wherein a group of the judges gets the primacy in the appointment process. It was later reconfirmed by the Supreme Court in In re, Special Reference No. 1 of 1998 (1998) with minor changes.
Multiple controversies in the realm of judicial appointments and transfers have surfaced in the past 4-5 years raising concerns about the faltering institutional autonomy of the members of higher judiciary in India’s constitutional democracy in the larger frame of democratic decay. These could be classified under two groups: one, which questioned the opaque and arbitrary nature in which the collegium is functioning [See here, here, here, hereand here]; and other, which raised questioned about the so called independence of the judiciary in light of the executive influence. Considering that the fact that the scope of the article, we shall restrict our study to the controversies appearing under the second category.
India got its 16th Lok Sabha in May 2014 under the leadership of PM Narendra Modi. Meanwhile, the Supreme Court had recommended the name of an eminent Senior Advocate Mr. Gopal Subramanium for elevation to the Court. However, in June 2014, the Government returned his file for reconsideration. Feeling ‘let down’, Subramanium withdrew his candidature alleging that the Government is trying to find dirt on him to declare his candidature as unsuitable. Outlookhas noted that ‘Subramanium, who had assisted the Supreme Court in the Sohrabuddin fake encounter case in which Amit Shah, a close aide of Prime Minister Narender Modi is now an accused, said that he was being “targeted” because of his independence and integrity.’ Interesting enough, Mr. Shah is the current Home Minister in the Central Government. This marked the initiation of a serious of instances of executive interference in judicial appointments and transfers.
Next in line were the transfers of Justice Rajiv Shakdhar from the Delhi High Court to the Madras High Court and Justice Abhay Mahadeo Thipsay from the Bombay High Court to the Allahabad High Court, that too just before lesser than one year’s time remaining in his retirement. Justice Shakdhar’s involuntary transfer in 2016 was notable because it was ordered after he struck down restrictions on the rights group Greenpeace, raising many eyebrows. Both of these transfers were perhaps made due to executive pressure and without the consent of the judges, which is considered as against the Supreme Court precedents and termed as the absurd ‘When you like’ approach by renowned jurist Rajeev Dhavan.
Then, in 2017, Justice Jayant Patel, who was slated to be appointed as the Chief Justice of the Karnataka High Court, had resigned when he was transferred to the Allahabad High Court, which would have reduced his chances of elevation to the Supreme Court owing to his downgraded seniority in the Allahabad High Court. Significantly, he was a member of the Bench of the Gujarat High Court that had ordered a CBI probe in the Ishrat Jahan encounter case, again involving Mr. Shah and Mr. Modi.
In September 2019, a couple of new additions have been to the list. The first one involves the ‘involuntary’ transfer of the Chief Justice of Madras High Court, Justice Tahilramani. The transfer of a Chief Justice from one of the chartered High Courts to one of the smallest and youngest High Courts in the country is an obvious case of downgrading and amounts to public humiliation of the highest judicial officer in a State. It is widely speculated that her judgement convicting the culprits in the Bilkis Bano case that happened during the 2002 Gujarat riots is the main reason for this transfer. Reacting to the transfer, Justice Tahilramani has resigned from the judiciary after the Supreme Court Collegium rejected her representation against the transfer.
The another controversy involves Justice Akil Kureshi. Earlier this year, the Collegium had recommended to appoint Justice Kureshi as the Chief Justice of the Madhya Pradesh High Court, which was returned by the Government without approval. On September 5, the Collegium, while allegedly ‘surrendering’ before the executive, has decided to transfer Justice Kureshi to the Tripura High Court. One of the probable reasons cited in the press is that Justice Kureshi had previously ordered a two days police remand for Mr. Amit Shah in the Sohrabuddin case, giving rise to another politically charged interference creating a mockery of the judicial independence. The Bombay Bar Association has also shown its disapproval to the modification in the transfer order and stated that ‘modification … at the behest of the Government undermines the independence of the judiciary.’
This series of events has provoked the old debate about balancing judicial independence with accountability in the context of an ever-powerful political executive that is increasingly averse to respecting the niceties of respecting judicial autonomy. Certainly, the resignations and involuntary transfers of senior judges marks the onset of a crisis phase. For the resignation is not just an act of highlighting an individual grievance. It also underlines the fact that those entrusted with the responsibility of upholding the independence of the judiciary have allowed themselves to be used by the executive as pawns in pursuit of a vindictive agenda.
Though the Supreme Court has very recently commented that appointments and transfers are pivotal to the administration of justice and thus, the executive must not interfere, but these one after another event of executive dominance seems to indicate the opposite. Another statement issued by the Secretary General of the Supreme Court has justified the decisions by stating they were taken for cogent reasons.However,Justice D.Y. Chandrachud, a sitting judge of the Supreme Court, has taken a radical view point and recently noted that transfers is no effective remedy for seeking accountability from the judiciary. Nevertheless, concerns regarding the deficient transparency in functioning of the collegium system in India have been highlighted.
It is noteworthy that in 1977, Late Justice V.R. Krishna Iyer warned in the Sankal Chand case that “public power is a lofty trust to be operated and, if private impulses or public aberrations play upon the exercise, the Court shall quash the lawless fiat.” The collegium is not a creation of the Constitution, but of the court itself. Yet, when the collegium’s decisions are called into question for having been influenced by extraneous considerations, there is no institutional check or transparency.
Similarly, Arghya Sengupta has also argued that in the age of accountability, the collegium must reveal the reasons behind its decision to the public because it affects public interest.
In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), while dealing with the constitutionality of the National Judicial Appointments Commission, the Supreme Court highlighted the virtues of judicial independence in a considerable number of pages and the fact that it is a part of the basic structure of the Indian Constitution. Similar concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents.
Demonstration of its independent strength is not only lacking in the realm of judicial appointments, but it extends to all those political matters which involves high political stakes of the ruling executive. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy.
It can only be hoped now that the Supreme Court realizes its true independence and follows the ideal of Late Justice H.R. Khanna because but for a structurally separated powers, the rule of law transforms into rule by law (rarely into rule by man), thus collapsing two fundamental ideals required for sustaining a constitutional democracy. It is high time that the judiciary steps up to fulfil its constitutional defence role and ensure that the Constitution is not reduced to just another legal document. In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed, the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. And in that context, it must safeguard its institutional autonomy in the domain of appointments and transfers from undesirable executive interference.
Prannv Dhawan is a third-year law student at National Law School of India University, Bangalore (India). He leads the Law and Society Committee at the university.
Anmol Jain is a penultimate year Constitutional Law Honours student at National Law University, Jodhpur. He was the chief editor of the varsity’s Constitutional and Administrative Law quarterly.
(The opinions expressed in this article are those of the authors’ and do not purport to reflect the opinions or views of The Leaflet.)