Are judges coming in the way of the government's liberalisation plans?

The unity displayed by the political parties during the past week when the monsoon session of Parliament passed a number of acts also had ominous signals to convey. Any sense of celebration in the show of a sense of purpose by the MPs should give way to despair if one looks a little deeper into the consensus at play when they united to amend such acts as the RTI, RPA and then Article 124 of the Constitution. The Constitution amendment putting in place a Judicial Appointments Commission, scrapping the system where a collegium consisting of the CJI and four senior-most judges appoint judges to the higher judiciary, is perhaps the most ominous of this all.

It must be stated, at the outset, that the collegium system was faulty; it was opaque and there were instances when persons with poor credentials were elevated to the Bench. It is a fact that we have had judges who were accused of land grab; some others were found to have kept someone else’s money with them; a few have been caught receiving money and favours from litigants; and one judge was guilty of having abused his powers and spent a lot of public money to decorate his office.

Having said this, it is also a fact that the Constitution provides for removing such judges; and yet, our MPs are guilty of either having failed in their duty in this regard or having let things drift and thus giving ample time to those who erred, to resign and get away. Those who recall the manner in which Justice V Ramaswamy was sought to be impeached, two decades ago, will remember that petty sectarian considerations were behind the way the-then ruling party MPs voted on the motion. And some will also remember that Ramaswamy was among those who were denied the honour of being taken in a procession, led by the CJI, on the day of his retirement.

Be that as it may, Article 124 (2), as amended by the Rajya Sabha on September 5, 2013, places the process of appointment to the highest court in the hands of the political class. As against the three members consisting of the CJI and two senior-most judges of the apex court, the Judicial Appointments Commission will consist of the Union Law Minister and two “eminent persons’’ to be appointed by a panel consisting of the Prime Minister, CJI and the Leader of the Opposition. All these appear to be democratic.

But then, the cat was let out of the bag during the discussion in the Upper House. Kapil Sibal tried to sound like Jawaharlal Nehru when he said that this was a moment in the life of our nation to revisit the past and embrace the future commending the Bill; but then, he was actually pushing an idea that Rajni Patel had done in the early 1970s on Indira Gandhi’s behalf.

The idea of a committed judiciary was pushed with such vigour when Indira Gandhi had resorted to ‘socialism’ as a means to restore her fortunes and found the higher judiciary standing in her way. Her followers in the ruling party orchestrated her views by accusing Justice K Subba Rao of participating in an anti-socialist conspiracy; and the regime then pulled all the stops to appoint pliant judges as CJI. All that is well known; a process that culminated in the shift to the collegium system (in 1994) began in that context.

What happened on Thursday, September 5 was, in a sense, a repeat of the events in the 1970s; an attempt to have a committed judiciary. If any proof is needed, it came from Arun Jaitley’s intervention during the debate. He placed on record that the judiciary, in the recent past, did not help the cause of justice by interfering in the way it did in economic policies (such decisions as banning iron ore exports or cancelling telecom licenses obtained by fraudulent means) or on administrative issues on how to deal with the Naxalites (as in the Salwa Judum case).

Such references, indeed, were not different from what Indira Gandhi’s followers had to say about the judiciary after the apex court struck down the law nationalising private sector banks or the Privy Purses case in the early 1970s.

There is, however, a difference. In the earlier instance, the political establishment was seeking to contain the judiciary and post such men committed to one particular definition of socialism in the higher judiciary. Arun Jaitley then was with those who opposed that idea; he was studying law at the Delhi University then and had joined the forces that opposed Indira Gandhi and thus appeared to have stood up for a free judiciary.

Well, he now belongs to the party whose government in Chhattisgarh had continued propping up the Salwa Judum (a creature founded by the Congress and its leader, the late Mahendra Karma) and sore with the apex court’s judgment in that case that the private army was an affront to the Constitution.

And he has a similar sense of purpose with the ruling Congress: To curb democratic protest or any resistance to the liberalisation programme.

Unlike in the 1970s, when a particular variant of socialism was Indira Gandhi’s agenda and which was opposed by the Jan Sangh (that was how Jaitley’s party was known then) and some others, we are now in times when socialism of any variant is a bad word, at least among large sections of the political class. It was this consensus that was witnessed on Thursday, September 5 when the Rajya Sabha set out to tame the judges.

Well, this was attempted in the 1970s and it achieved a measure of success. The attempts then were glossed over with socialism. It is in the name of capitalism and growth this time.

The writer is Associate Professor, Dept of History, Sikkim University.