#dnaEdit: A time for change

Having repeatedly found itself in confrontation with a weakening central government since 2010, the year 2014 could mark another watershed moment in the history of the Supreme Court (SC). For the first time since 1984, a single party breached the simple majority mark in the Lok Sabha. The past two decades of weakening central authority had facilitated an increasingly activist judiciary which even arrogated to itself the power to appoint judges through the Second and Third Judges Cases (1993 and 1998). It was not just symbolic then that among the first legislations piloted by the Narendra Modi government was the Judicial Appointments Commission Bill divesting the collegium of SC judges of the power to appoint judges. However, what has set alarm bells ringing was the Centre’s conduct in the appointment of senior advocate Gopal Subramaniam to the SC. A series of leaks, which could only have emanated from government circles, forced Subramaniam to pull out even before the collegium could review the veracity of the leaks. If transparency is the yardstick for judicial appointments, those in the government, unhappy with Subramaniam, should have restrained themselves till the collegium took a stand.

The judiciary appears to have taken the cue and subsequently acted with considerable restraint. Several petitions seeking annulment of the JAC legislation were rejected by the apex court, claiming that they were premature. The court’s actions in cancelling 214 of 218 coal block allocations, a UPA legacy, had the tacit approval of the new government, which wished to start on a clean slate. In separate petitions seeking disqualification of legislators and exclusion of ministers who have criminal charges framed against them, the SC has put the onus on Parliament to do the needful rather than adopt the proactive stance of last year when it struck down as unconstitutional a provision in the Representation of People’s Act. The provision had allowed convicted legislators to continue in public office. But with 15 states having ratified the constitutional amendment clearing the JAC legislation, the SC collegium’s days are numbered. While fears for the judiciary’s independence are clearly overstated, the collegium has only itself to blame for not adequately dealing with allegations of judicial corruption.

Where the SC pulled no punches in 2014 was in its effort to reform the CBI. In May, the court quashed Section 6A of the Delhi Special Police Establishment Act which prevented the CBI from probing officials above Joint Secretary rank, without central government approval. With the Centre shying away from disciplinary action against former CBI director Ranjit Sinha, it was left to the SC to direct him to recuse from the 2G spectrum scam investigation. In breaking social taboos, the SC has yet again exposed the inability of Parliament and lawmakers in pushing the frontiers of social change. In April, the court gave legal sanctity to the transgender community’s long-standing demand for acceptance as the third gender. By holding that the individual’s personal right to choice guaranteed by the Constitution will henceforth decide gender identity, this judgment’s views on the right to choose raises the question of last December’s controversial judgement recriminalising homosexuality. Then in July, the court ruled that Shariat courts had no legal sanctity and fatwas must not be issued to trample upon the fundamental rights of citizens. In February, the SC, while commuting the death penalty on 15 death row prisoners to life imprisonment issued 12 guidelines denouncing the delay in disposing mercy petitions. With the JAC Act certain to come up for judicial review in 2015, it is important to quickly settle this issue to the satisfaction of all stakeholders and get down to the business of governance and adjudication.