A ‘Supreme’ turbulence

The fundamental issue raised by four top judges of the Supreme Court (SC) is not senior versus junior judges, nor  Chief Justice of India (CJI) versus other judges, not even reports of different news establishments about the sad demise of Judge Loya.  The issue is far broader and deeper: the independence of the judiciary, the functioning of the SC and, perhaps, a dark shadow of the executive over the dome of the majestic SC!

The “form” of meeting the press cannot overshadow its “substance”, particularly when the issue has been raised by judges of unimpeachable integrity. It’s a clarion call to save India’s democracy. If the functioning of the SC is compromised then democracy in India collapses! Should we not see the writing on the wall? It is surprising that some eminent persons are failing to see through the evil design of forces attempting to dismantle India’s grundnorm! If this is not anti-national, what else is?     

The SC is the custodian of public trust of 1.3 billion Indians! It is the most respected institution amid decay of all other institutions. Power that our SC judges exercise is awesome!  One needs only to glance through Part V Chapter IV of the Constitution to grasp the enormity of this power. Indubitably, the SC is the most powerful court in the world and is the torchbearer of India’s democracy! It is necessary, therefore, that the SC itself guards against any possible dilution of its independence, otherwise, democratic fabric of India will get torn to shreds.   

Indian civilisation shows that period of glory has always alternated with periods of darkness. This has been going on from time immemorial, right from Aryan and Dravidian civilization. Not long ago democracy in India was imperilled during the Emergency when some judges of SC failed the nation! This was a period of darkness.  In the infamous case of ADM Jabalpur versus Shukla, four of the five [CJI AN Ray,  HR Khanna,  MH Beg, YV Chandrachud,  and PN Bhagwati]  senior-most judges of the SC struck a mortal blow to the Constitution when Emergency was still in operation. On April 28, 1976, the Supreme Court passed the following order in this Habeas Corpus case: “...in view of the Presidential Order dated 27th June, 1975, no person has any locus to move any writ petition under article 226 before the High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated mala fides factual or legal or is based on extraneous considerations”.  

The judiciary was disgraced and the Constitution was defiled by this order. Justice Khanna alone stood like a rock and fought amid judicial ruin and devastation!

Earlier, on  April 25, 1973, three senior judges of the Supreme Court  (Justices Shelat, Hegde and Grover) were superseded when Justice Ajit Nath Ray was appointed as the Chief Justice of India. Mrs Indira Gandhi had struck a “grievous blow to the independence of the judiciary”, said Justice HR Khanna. Justice HR Khanna himself was superseded by Justice MH Beg on January 29, 1977, after delivering the Habeas Corpus judgment, despite being the senior-most judge in the Supreme Court of India. Justice Khanna resigned on 3rd January, 1977. We have to guard against such situations and possibilities in the future. The bar must remain vigilant.

Of course, India’s democracy has advanced tremendously and today it is unthinkable that our judges would yield to any executive machinations. But in 2014-2015 the executive attempted to control the appointment of superior court judges and brought in National Judicial Appointments Commission (NJAC) with the shadow of the Law Minister looming large over appointment process. The Law Minister presides as the head of India’s biggest litigant, the government.  This was a direct attack on the independence of the judiciary.  On October 16, 2015, a five-judge constitution bench of the Supreme Court, by a majority of 4 to 1, struck down the Constitution (99th Amendment) Act, 2014 that created  NJAC. This verdict revived the collegium system (in SC) of appointment of SC and HC judges with immediate effect.  The NJAC verdict also directed the government to finalise the Memorandum of Procedure (MoP) for the appointment of judges in consultation with the CJI.

It appears that the government has still not been able to digest the NJAC verdict. Even 27 months after the NJAC verdict,  MoP  has not been finalised.  The stalemate continues. This has been undermining the functioning/independence of the judiciary.  Appointment process of judges is being impeded, the backlog of cases is mounting, and vacancies of judges are not being adequately filled up. Around 40 per cent vacancies continue to exist in HCs. Justice delivery system is in critical condition now. Litigants have been the direct victims.

Those attempting to undermine the independence of the judiciary ought to remember that a solitary courageous judge from Allahabad High Court, Justice Jagmohanlal Sinha, had invalidated the election of Prime Minister India Gandhi, who was declared guilty of corrupt practices. She was also disqualified from contesting election for six years. Emergency was then imposed on the nation. The rest is history. It is time for every Indian judge to collectively rise to the occasion.

India is witnessing an undeclared emergency today.  Freedom of the press is being stifled, judiciary’s independence is being undermined. If four top outstanding judges of the apex court of the largest democracy have voiced anguish in unison before the nation that they are discharging a debt to the nation by informing the citizens that they cannot be seen to be selling their souls, then the situation is alarming! The nation salutes these four judges who will go down in history as having fought valiantly to uphold the rule of law in India. Stand up, 1.3 billion Indians, let’s save our democracy!

The author is a former Additional Solicitor General of India and is a Senior Advocate at the  Supreme Court. Views expressed are personal.