For the Courts and Constitution, a Year of Living Dangerously

While evaluating the Narendra Modi government’s first year of performance in relation to the judiciary, the most important development that strikes our attention is the passing of the Constitutional Amendment for the appointment of the National Judicial Appointments Commission.

The Commission is intended to make appointments to Constitutional Courts, that is our High Courts and the Supreme Court.

While there has been much criticism of the existing system of appointments by the courts themselves, the Collegium process being non-transparent, the system put in its place is even more dangerous. The representative of the government can veto any appointment and can, in collaboration with the “eminent” person on the NJAC, ensure that friendly judges are appointed.

Given the track record of the government in making appointments of major constitutional heads from among party functionaries, there is reason by believe that the “eminent ” persons will be friendly persons.

What is at stake is the very independence of the judiciary from the executive. While arguing the challenge in court, Fali S. Nariman said, “My client is the independence of the judiciary”. That, in a sentence, sums up the chilling effect the new law has on the system and the rights of citizens.

Amit Shah. Credit: Wikimedia Commons

Amit Shah. Credit: Wikimedia Commons

The most shocking evidence of this friendliness between constitutional institutions comes from the refusal of the Central Bureau of Investigation to appeal against the clean discharge in a murder case of Bharatiya Janata Party President Amit Shah by a special CBI court in Maharashtra.

Shah was accused of triple murder – the killing of Sohrabuddin, his wife Kauser-bi, and Tulsiram Prajapati – and yet he did not stand trial. This is the ‘acche din’ he was waiting for after which one can see a new aggressiveness.

The Prime Minister himself is still caught in criminal litigation since the closure report in the Zakia Jafri case is under challenge and it is the ambition of his life to get what he calls a “clean chit” with all proceedings ending.

While the Congress-led UPA was in power justice, Justice RM Lodha called the CBI a “caged parrot” that “speaks in its master’s voice”. I would say that under the BJP-led government, the caged parrot is still imprisoned within that cage but has had its wings clipped as well.

Constitutions can be subverted in a million ways. Some that we have seen are the collapse of the Cabinet form of government by giving primacy to the Prime Minister, the collapse of the difference between party and state with the state behaving as the mouthpiece of the party, the unwritten move towards a ‘Hindutva’ state as is now obvious from the move to give citizenship to Bangladeshi Hindus without giving citizenship to others from undivided India, the refusal to accept that Sovereignty resides in the people and not the party, as reflected in the cuts in budgets for health and education, and the attacks on the National Rural Employment Guarantee Scheme.

The most recent attempt to usurp the powers of Delhi Government in the matter of postings of civil servants shows complete disregard for constitutional norms and is a cynical abuse of power.

One can only hope that the courts will stand up to these challenges to the basic structure of the Constitution.

Indira Jaising is a Supreme Court advocate and a former Additional Solicitor General of India.