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Mainstream, VOL 60 No 47 November 12, 2022

Government setting bad precedent by questioning the functioning of the judges and judiciary | Arun Srivastava

Saturday 12 November 2022


by Arun Srivastava

Kiren Rijiju, law minister, must be feeling depressed and also angry at the Supreme Court judges, Justices K.M. Joseph and Hrishikesh Roy who dared the government to take action against corrupt officials who according to them were a bigger threat to the country’s security. Through their observations the judges had sent the strong message that the executive was the biggest threat to the country. Rijiju has often been accusing a section of the judiciary of not working in a transparent manner.

Rijiju advocates for judiciary taking the orders from the executive. A judiciary committed to the Constitutional tenets and asserting itself keeping its head high and not succumbing to the machinations of the executive is a major threat to the political hegemony of the government. The most effective mechanism to keep the judiciary under the control of executive is the appointment of the judges by the executive, in other words by the government. Obviously this implies that Modi government intends to make judiciary subservient to it. It perceives an assertive judiciary a potential threat to its existence.

Only a fortnight back Rijiju had said that the collegium system of appointing Supreme Court and high court judges is “opaque” and involves “intense politics” on a scale higher than anything that politicians indulge in. His observation makes interesting reading. It implies that collegium must not apply his wisdom in choosing best judges and should allow the executive to nominate judges who suit it and are willing to carry out its orders.

Unprecedented in the administrative or judicial history of India, a law minister openly tried to cajole the judiciary, “I was very upset by it. These are the matters that really upset me. If we are adamant on any subject and not listening to the judiciary, the judiciary can come down heavily”. This certainly does not augur well. Rijiju also dared to caution judiciary of not venturing to cross the Lakshman Rekha in the interest of the nation. It would have been better if had taken pains to put before the country the instances which really inflicted damage to the nation. Simply a hyperbole is not enough. A person holding such high position must come out with clinching and concrete evidence.

Fundamentally the executive and judiciary are two pillars of democracy. There should not be any kind of overlap. If the executive believes that judiciary is not working properly in the constitutionally defined manner, it could raise the matter with the President of India. But it should not interfere in the internal matters of judiciary. Every system has some kind lacuna. There is imperative need to rectify it. But on the plea of correcting it the government should not be given the opportunity to impose its design on the name of creation of “a better system”. Obviously the people of the country would like to know why BJP intends to dominate and dictate the judiciary?

The approach and attitude of the judiciary towards the executive got manifest on Wednesday while hearing the case of Gautam Navlakha, a journalist who is jail for many years in the Bhima Koregaon case. The NIA has been adopting a murky plea to let him continue in the jail. On every hearing it came out with the simple excuse that he is connected to Maoist group and the case is still under investigation.

But overruling their plea the Supreme Court on Wednesday said it would place civil liberties defender Gautam Navlakha under “house arrest”, rejecting the NIA’s plea that the 70-year-old accused in the Bhima-Koregaon case is a threat to national security. Justice Joseph was more candid; “I don’t think they (the rights activists) want to destroy the country. People who destroy the country, do you want me to tell who they are? The people who are corrupt”. He also observed; “You know what happens when you go to government offices? Who is taking action against the corrupt? Crores of rupees are collected but they get away”.

With additional solicitor-general S.V. Raju opposing court’s suggestion to keep Navlakha under house arrest and arguing that the activist had links with Maoists, Kashmiri terrorists and the Islamic State, Justice Josepth said: “We are aware of the case. We are conscious that we have to tread carefully. We agree that house arrest as a form of arrest has to be used carefully by courts. Put whatever restrictions you want. It is not that he is going to destroy the country. He is not in the best of health. Let him remain under house arrest for some days. Let’s try to work it out.” The bench noted that the chargesheet was filed way back in 2020 and the trial was yet to commence. Referring to the records, the court pointed out that the activist is accused of having links with terrorists and the IS. “How do you connect the dots? ISIS and Gautam. What is the link?”

Committed to Constitution the prime task of the Supreme Court is to ensure that the fundamental rights enshrined in the Constitution are not trampled or denied by the administration and government. We have seen the government has the tendency to cross the Lakshmana Rekha and implicate the voice of protest in false and fabricated cases. The Modi government during its rule has been ruthlessly using the CBI, ED and sedition to terrorise its political opponents and also to those who oppose its anti-people policies and programmes.

During these 8 years of Modi rule sevral thousand cases have been filed by the ED. Only yesterday a PMLA court granted bail to the Sena MP Sanjay Raut who has spent around 100 days in jail. The court observed that the arrest was illegal, without reason and a prima facie indication of a witch hunt. Raut was arrested by ED in a Rs1,034-crore money laundering case linked to alleged irregularities in the redevelopment of Patra Chawl in Goregaon West. The court also sought to know why ED had not arrested the main accused, ex-HDIL promoters Rakesh and Sarang Wadhawan. It said Rout’s arrest was outcome of ’pick and choose strategy’, The ED has falsely implicated him in money laundering. The judge said labelling pure civil disputes as "moneylaundering" or "an Economic Offence" cannot automatically give it such status.

This simple case exposes the reprehensible machination of the ED. Rijiju’s fierceness towards Judiciary should be viewed as a part of the chain. Obviously he was doing it at the behest of powerful people in the Government.

His aphorism that Collegium system of appointing judges involves ’intense politics, lowers the prestige of the judiciary. In fact his contention that since judges appoint judges it led to pendency of cases is absolutely wrong and skewed. The fact of the matter is the delay on the part of the government to appoint the judges has been major reason for pendency of cases. On many occasions the court has to wait for the clearance of the names of the judges.The CJI and the three next senior-most judges select judges for the high courts after obtaining initial recommendations from the collegium of the high court concerned, made up of the high court’s chief justice and the next two senior-most judges.

Rijiju is not correct in his observation; “When there is a system which is not transparent, which is opaque, then if the concerned minister does not speak out, who else? So basically I am stating a fact which is a thinking and reflection of the lawyers’ community and judges also”. Since four/five judges take the collective decision, it could not at all be described as opaque. The CJI alone is not taking the decision sitting in his chamber.

Interestingly reacting to Rijiju’s statement on non-transparency in appointment of judges, the senior BJP leader Subramaniam Swamy twitted to Rijiju; “Union Law Minister Rijiju says SC Collegium System is “opaque”. I as a former Union Law Cabinet Minister and one who has argued in Courts hundreds of times, can state Modi Cabinet System is far more opaque. So Rijiju fix that first. Don’t blame me if you are sacked.”

Rijiju feels aggrieved that the court had struck down the NJAC without providing an alternative mechanism, and persisted with the collegium system. Why should it not? Appointment of judges has been exclusive domain of the collegium. What made Modi government to interfere in its functioning? It only strengthens the credence that Modi desired to appoint gullible judges who will too eager to listen to his diktat and too willing to implement. No denying the fact that collegium has frustrated the attempt of the Modi government to make the judiciary subservient. In fact NJAC as proposed by Modi government woul have diminished the stature of judiciary of being an independent pillar of the democracy.

It is irony that instead of waiting for the Supreme Court’s suggestion Rijiju has come out with the observation; “They did not tell the better option, but they felt the old collegium system should continue. I am not convinced with the present system. I spoke it out. Judges agree with me because what I am saying is fact and not contrary to their belief and understanding.” The hurry exhibited by Rijiju points to some portentous design. It is absolutely incorrect on the part of Rijiju to say that judges lack the information and expertise required to select judges, compared with the government which has more resources.

He ought to not forget that sitting on chairs they decide and deliver orders on all kinds of cases. By saying that they lack information, he was simply undermining the intellect and capabilities of the judges. He is not fair to the judges and collegium when he says; “If you see the collegium system, they decide names on the basis of their understanding of the names and also the consultees. Who are the consultee judges? Supposing you are a consultee judge (a judge acquainted with the candidate’s home state and his antecedents) you will recommend only those names known to you, who are your acquaintances, otherwise you won’t be recommending someone whom you don’t know. So, the basic fault in the system is that you won’t recommend even if he is qualified, fit or good enough and (the) perfect person to be a judge in a high court and the Supreme Court. But you can’t recommend because you don’t know.”

An insight into his criticism of the functioning of the Supreme Court would unravel that two developments drove him to this point; first, appointment of D Y Chandrachud as the CJI and second, the unwillingness of the apex court to the lift the freeze on all the proceedings under the sedition law. Modi’s emphasis on One Country One Uniform and again his government’s move to turn NIA into a pan Indian policing system, suggest that he needs restoration of the sedition law as the future political system is going to pose major challenges before him.

On the eve of Justice D Y Chandrachud taking over as the new Chief Justice of India, Kiren Rijiju has been expressing his displeasure over the collegium system of the judiciary. There is no denying the fact that it was a shrewd strategy to create pressure on Justice Chadrachud who has the credibility of being an upright judge and incidentally just after his swearing as CJI committed himself to the cause of the people. It is worth taking note that the prime minister Narendra Modi skipped his swearing in ceremony on the pretext that he had to participate at the election campaign in Himachal. Long before the campaign was launched, Chandrachud’s swearing date was announced. Prime Minister Modi abstaining from the swearing in ceremony has not been received in good spirit in the legal, political and social circles.

Justice Chandrachud, known for his liberal visions and progressive verdicts will have a two years’ stint as the CJI that will also pass through the ensuing 2024 Lok Sabha elections. Though the apex court has been engaged with the sedition law petition, the government so far has not placed its version, review report and the paper about the changes it wants to bring about in the colonial-era law. The Supreme Court had frozen the law in the wake of members of civil society and activists questioning the continuation of the sedition law and flagged its misuse by governments against critics and political opponents.

Though Rijiju insists that the law should be restored, he is not out rightly saying when the government would place its version before the apex court. He only has to say; “(On) the sedition law, we said, we are making some changes. Despite that the Supreme Court struck down”. He said that he was not critical of the judiciary; rather, he was talking about the “thinking of the people of India, reflection of the people of India”. But the fact is people by and large nurse the view that the government was using the law to victimise and coerce its critics.

While Rijiju bitterly criticised the judges and even questioned their competence, in a balancing act he also heaped praises on them and said some good words about them. He praised judges for their hard work and rejected allegations that judges go on vacation too often. “Judges are doing so much work. No judge in the world will be doing so much work which Indian judges have to go through. Each judge — whether (in the) Supreme Court, high courts, or subordinate courts — they deal every day with 50-60 cases. Now I get complaints that judges go on holidays three times in a day and why should judges get so many holidays? But there I tell them that the amount of work Indian judges do, they need a break. Otherwise, they will break down.”

This remark from him obviously raises the question; which Rijiju is correct. He who said; “If the judiciary starts framing the rules, if they start deciding where the road is to be built, if the judiciary gets into the service rules, what is the government for?”.

The former Supreme Court judge Madan B Lokur took a grim view of Rijiju’s statements regarding judicial appointments. He said; “As far as the issue of judges spending more time in deciding judicial appointments is concerned, I would say people who live in glass houses should not throw stones at others. I don’t know what point is he making. It is not possible to have an in-house mechanism to regulate the observations because they are a part of the discussion while hearing the case?”

Rijiju might have been denied the opportunity to speak against the judiciary if the government had functioned according to the Constitutional provisions. A situation had come when the courts were flooded with the cases under the sedition laws produced by the police. Most of the sedition cases were flimsy and frivolous in nature and entertained by the police to appease the local BJP activists and cadres. Article 226 of the Indian constitution gives the high courts in the country wide powers to issue writs for the protection of fundamental rights “and any other purpose”. The constitution gives the judiciary wide powers to act, to address governmental inaction as well as actions that are questionable being illegal, arbitrary or mala fide.

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