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Mainstream, VOL LVI No 20 New Delhi May 5, 2018

The BJP Wants a Subservient Judiciary

Saturday 5 May 2018, by Barun Das Gupta


The ugly truth, suspected for long, is out in the open now: the BJP wants a subservient judiciary. The litany of objections raised by Union Law Minister Ravi Shankar Prasad to the appointment of Justice K.M. Joseph as a Supreme Court judge is as flimsy and faulty as an objection can be. Justice Joseph, now the Chief Justice of the Uttarakhand High Court, struck down the Centre’s decision to dismiss the Congress Government of Uttarakhand by imposing President’s Rule. His name, along with that of a senior advocate of the Supreme Court, Indu Malhotra, was unanimously recommended for appointment as Supreme Court Judges by the Collegium of five senior judges of the Supreme Court. But the BJP Government could not stomach the idea of Justice Joseph being elevated to the Supreme Court because he had incurred the displeasure of the powers that be.

In raising objections to Justice Joseph’s appointment to the Supreme Court, Ravi Shankar Prasad committed several impro-prieties. First, he made public his letter to the Chief Justice of India in which he had spelt out his reasons for objecting to Justice Joseph’s appointment. A letter from the Law Minister to the CJI is a privileged communication that should be treated as such. It may be recalled that when Venkaiah Naidu as the Chairman of the Rajya Sabha rejected the privilege motion against the CJI moved by 64 Opposition members of the Upper House, one of the reasons cited by him was that the members had disclosed their charges against the CJI at a press conference. The disclosure was held to be an impropriety on the part of the Opposition members of the Rajya Sabha. But when the same impropriety was committed by the Law Minister, everybody in the BJP kept mum

In his letter to the CJI, Prasad maintained that Justice Joseph ranked 42nd in the all India seniority list and that his elevation would mean there would be two Supreme Court judges from Kerala. Also,. Justice Joseph is placed at number 42 in the All India High Court Judges’ seniority list and there are presently 11 Chief Justices of various High Courts who are senior to him.

First, there is no ‘quota system’ restricting the number of judges from a State who can be elevated to the Supreme Court. There are now four judges in the Supreme Court from the Bombay High Court and three from the Delhi High Court. So, Prasad’s objection on this count is untenable. Second, the point about seniority ranking. Seniority is not the only criterion taken into account by the Collegium when recommending a High Court Judge for appointment in the Supreme Court. The recommendation of the Collegium clearly says::

“The Collegium considers that at present Justice K. M. Joseph, who hails from the Kerala High Court and is currently functioning as Chief Justice of the Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India. While recommending the name of Justice K. M. Joseph, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity.”

After this clear and unambiguous observation of the Collegium, does Ravi Shankar Prasad have any ground to raise the seniority question and cavil at Justice Joseph’s elevation to the highest judiciary of the land? It only betrays his and his government’s intention to have judges to the liking of the ruling party. It is this attitude which threatens the independence and integrity of the judiciary and is subversive of the justice delivery system—not the motion for the impeachment of the CJI in the Rajya Sabha.

If the Collegium re-confirms the name of Justice K.M. Joseph and sends it back to the Centre again, as seems likely at the time of writing, Ravi Shankar Prasad and his boss will have to accept it. It will mean loss of face for them which was quite avoidable and should have been avoided.

What is noteworthy is that several retired Chief Justices of India and other senior judges have criticised the Centre’s move to prevent the elevation of Justice Joseph to the Supreme Court. Senior Supreme Court lawyer Prashant Bhushan has said the Centre’s move “has become a public scandal, particularly because of extensive media coverage of the medical college scam case, the Loya case and the coverage of the four judges’ press conference about the CJI misusing his power as Master of the Roster, etc.”. Bhushan has raised the question: “Should we just sit by and watch the entire SC being eroded from within?” He believes: “The judiciary has already come under disrepute.”

When a party in power, commanding a comfortable majority in the legislature, tries to erode the authority and independence of the judiciary for subserving its narrow political objectives or to settle scores with individual members of the judiciary, it amounts to subversion of the entire edifice of the judiciary.

If, eventually, the BJP Government succeeds in stalling the appointment of Justice Joseph, it will only lose its credibility with the people. It is precisely to immunise the judiciary against unwarranted executive interference that the separation of the executive from the judiciary was done. Article 50 of the Constitution says: “Separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State.”

 The Constitution has created three arms of the State—the Legislature, the Executive and the Judicature. Their respective jurisdictions have been defined. It is expected that the three institutions will work in harmony and respect each other’s sphere of authority. In case of any controversy, the decision of the Supreme Court will be binding on all. The founding fathers of the Constitution did not visualise the possibility that future governments might insidiously attempt at reducing the judiciary to an appendage of the executive.

In India today, the court is the last resort of the citizen to seek redress against the arbitrariness of the Executive and for enforcing the fundamental rights given by the Constitution. Any attempt to subvert the freedom of the judiciary is tantamount to subverting the democratic edifice of our Republic. Such an attempt has to be resolutely fought and defeated.

The author was a correspondent of The Hindu in Assam. He also worked in Patriot, Compass (Bengali), Mainstream. A veteran journalist, he comes from a Gandhian family and was intimately associated with the RCPI leader, Pannalal Das Gupta.

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