Ask yourself one question: Do I want an independent judiciary or a committed judiciary? To answer the question, you may (perhaps) need to know the consequences of having a committed judiciary versus an independent judiciary. Although the consequences are quite obvious, a short question to assist you in making a decision is this: Would you like to play in a match in which the umpire or referee is committed to one of the teams or one of the players?
I am not saying we have a committed judiciary, but we are being driven in that direction. The recent utterances of law minister Kiren Rijiju, obviously on behalf of the government (otherwise he would have been sacked long back), make it quite clear that the government wants a committed judiciary, as Mrs Indira Gandhi did at one point of time. Strange, isn’t it that the government is following in her footsteps, without acknowledging it? Recent developments suggest that the government is inching towards having its way. My appeal: We have to stop the juggernaut and stop it now.
Mrs Gandhi’s government advocated a committed judiciary and even superseded three judges of the Supreme Court (Justices Manilal Shelat, A.N. Grover and K.S. Hegde) and appointed the fourth (Justice A.N. Ray) as the Chief Justice of India (CJI). A couple of years later, the government superseded Justice H.R. Khanna and appointed Justice M.H. Beg for the same position. The attempts were brazen and were met with strong resistance from the Bar, but the government had its way. Fortunately, the idea of a committed judiciary was eventually dropped for a variety of reasons, which need not be discussed.
While following in Mrs Indira Gandhi’s footsteps, the government is avoiding the missteps she made. The attempt is not overt, as of now, but not so subtle as well. Slowly but surely, the government is moving ahead and the results of the machinations will be apparent, not now, but in a few years.
Why do I make this pessimistic prognosis? The answer lies in the government’s approach to the procedure for the appointment of judges. Silences in the procedure and process, which is built on trust and mutual respect, are taken advantage of by the government, notwithstanding the Supreme Court collegium (SCC) which, I am afraid, will become irrelevant in a couple of years (if not sooner) should the present trend continue.
The government says that it must have a say in the appointment of judges, but with the Supreme Court striking down the National Judicial Appointments Commission, it has no say in appointments. Really? Let me briefly outline the procedure for the appointment of judges to the high court and the Supreme Court, as per the Memorandum of Procedure (MoP). The application of the procedure by the government will demonstrate whether it has a role and how it is being played for having a committed judiciary in the long run.
Memorandum of Procedure
The chief justice of the high court, in consultation with the next two senior judges (called the high court collegium or HCC) recommends lawyers and judicial officers for appointment as high court judges. The HCC may consult other judges and lawyers – there is no prohibition, since the idea is to get the best persons. Ask a former chief justice of a high court and you are likely to be told that he or she has also taken the opinion of somebody or the other outside the HCC at some point of time. I have done that as a chief justice of the high court, following what my chief justices in the Delhi high court have done, including taking the views of well-known and respected lawyers.
The MoP also entitles the chief minister of the state to suggest a candidate for consideration by the chief justice. This may have happened on some occasions; I can’t say for sure. It depends entirely upon the chief minister, but more importantly, it is clear that the state government has a say in the recommendation process. The problem here is that if the chief minister makes a recommendation and the chief justice does not agree, the CM may not process the case of those recommended by the chief justice. This has happened in the past on (at least) one occasion and will certainly happen in the future also. The only answer to this is transparency in the process and putting out a chronology of dates and events.
The recommendation by the chief justice (and the HCC) is sent to the governor of the state, the chief minister and the law minister, as per the MoP. The recommendation is also sent to the CJI. Each of these authorities is expected to act upon the recommendation. The governor and the chief minister make their inquiries and their views are sent to the law minister, who is also expected to make independent inquiries, on behalf of the Union government, through the Intelligence Bureau and any other channel that he may wish. Based on the inputs received from the state government and inputs received independently by the Union government, an opinion is formed by the law minister, on behalf of the Union government, and conveyed to the CJI. The law minister is not a post office, as rightly stated by one law minister, but if he chooses to act as a postman and not record the facts and his views and convey them to the CJI, that’s his problem.
So, when the recommendation reaches the CJI from the law minister, it is expected that every authority has done their homework and put on record whatever they may have to say, including any objections or reservations that anybody may have. The CJI along with the next two senior judges then considers the recommendation based on the inputs received and while doing so, also takes and considers the views of judges of the Supreme Court associated with the high court, either as a judge as some point of time or as a chief justice of that high court. This is provided for in the MoP. There have been occasions when as many as four or five non-collegium judges have been consulted. In other words, the consultation process within the Supreme Court is quite rigorous. At one point in time, the candidates were invited to meet the judges in the SCC (not for an interview) but to have a chat and obtain any clarification, if required and also meet the person being recommended. It is thereafter that the SCC conveys its views to the government either accepting or partly accepting the recommendation of the high court or not accepting it or deferring it for obtaining further inputs.
After the SCC conveys its acceptance of the high court recommendation, the government is expected to process the file by obtaining necessary documentation from the high court, such as the medical certificate of the candidate and the name of the candidate in Hindi and English. After this formality is over, the recommendation is sent by the prime minister to the president for issuing a warrant of appointment. Now, here is the crunch part. What has started happening with increasing frequency is that the government returns the case papers to the SCC for reconsideration. Why should that happen? Is it because of a difference of opinion between the government and the SCC? Everything is on the record, including the opinion of the state government and Union government and all the information provided is considered by the SCC.
The game starts here
Since all information available with the government is placed before the SCC, including the views of the governor of the state and the chief minister and the Union government, on what basis does the government disagree with the SCC? One can understand if some new material comes before the government that needs to be placed before the SCC, but that is usually not the case. It is just that the government has a different opinion from that of the SCC and so the law minister sends the papers back to the SCC for reconsideration.
Under these circumstances, the SCC has a fresh look at the recommendation and may decide to reiterate its decision. In such a situation, what does the government do, again with increasing frequency?
The government then either asks the SCC for a second reconsideration and in some cases for a third reconsideration or simply does nothing like Little Jack Horner. The law minister simply does not process the recommendation made by the SCC. This is short of telling the SCC that the government does not care for the views of the SCC. The stalemate created by the government frustrated Aditya Sondhi, whose recommendation was not processed for one full year while the case of several others recommended later was processed. He then withdrew his consent. This served the purpose of the government. Unfortunately, the SCC did nothing in the matter, emboldening you know who. The same subterfuge is being adopted in the case of Saurabh Kirpal, but he is hanging on, thankfully. I am sure there are many others like him. Bless them all.
Now a new and novel scheme is emerging. Sometime back, a recommendation, not accepted by the SCC was returned to the SCC for reconsideration by the government. It is reported that some more are on the way. Why has the government taken this unprecedented step? Is it that the government doesn’t trust the judgment of the SCC? Or, is it that the government bona fide believes that the SCC made an error? Given the track record of the government, it appears that the SCC is being told that your decision is not final and you do not have primacy in the decision-making process. This is the nub of the controversy between the judiciary and the government and a frontal assault on the collegium system. When and where will this end?
Imagine a scenario which I think is quite frightening. As it is, I believe, the government doesn’t care much for the views of the SCC. It is therefore quite possible that the government may go to the extent of processing the case of a candidate not accepted by the SCC, and then recommend his or her case to the president for appointment. Wicked thought, but strange things are already happening in the appointment process. So, I would not dismiss this as improbable – the pitch is being laid for it.
Several other fronts
So many other fronts have been opened up by the government in its relationship with the judiciary. One of them pertains to the transfer of the chief justice of the high court. The SCC recommended the transfer of Chief Justice S. Muralidhar from the Orissa high court to the Madras high court. This was on September 28, 2022. More than three months have gone by but the government has given two hoots to the SCC recommendation. This is the way chief justices can and are being treated by the government.
On December 13, 2022, the SCC recommended the appointment of three puisne judges as chief justices of Jharkhand, J&K and Ladakh and Gauhati high courts. A month has gone by and the government is cocking a snook at the recommendation of the SCC. This is the way potential chief justices can and are being treated by the government.
Several transfers recommended by the SCC are supposedly still being processed by the government. This is the way judges of the high court can and are being treated by the government. Recommendations relating to more than a dozen lawyers and judicial officers are pending consideration with the government. This is the way potential high court judges can and are being treated by the government.
Can anybody please explain what’s going on in the post office? With this exercise of naked power, I have no doubt that the government is attempting to suborn the independence of the judiciary, a basic feature of the constitution of India and one of the pillars of democracy.
Appointments to the Supreme Court
Let’s shift focus to the appointment of judges to the Supreme Court. After a recommendation is suo motu made by the SCC of five judges, the MoP obliges the government to accept the recommendation and make the appointment. But consider two events that occurred in the case of Gopal Subramanium. First, the government stalled his appointment and did not have the courage to inform the CJI of the reasons for doing the unthinkable. This resulted in Subramanium withdrawing his consent to be appointed as a judge of the Supreme Court (and perhaps the CJI). Second, the government split the recommendation made by the Supreme Court and processed the case of others. This is completely disregarding the fact that always one recommendation is made by the SCC consisting of two or more persons. A former CJI expressed that a recommendation cannot be split up. The government cannot split a recommendation into half or one-third and process the recommendation of one (or more) person to the detriment of others who are left hanging out to dry. The government ought to have returned the recommendation to the Supreme Court (the MoP does not provide for that) with its objections and the SCC would have taken a call on the objections. Although it is in the past, a precedent has been set.
Splitting up a recommendation allows the government to pick and choose. It is possible in a given case to split the recommendation and hold back the case of one individual and process that of the others so that the “favoured” one may become the CJI in due course or lose his or her seniority. That is the danger. As mentioned above, though the circumstances were different, Mrs Gandhi’s government twice superseded sitting judges of the Supreme Court. What prevents the government from superseding other judges again in the footsteps of Mrs Gandhi?
In fact, Chief Justice K.M. Joseph of the Uttarakhand high court lost his seniority while being considered for appointment to the Supreme Court. He was recommended by the SCC in January 2018, along with Justice Indu Malhotra, then a practising senior advocate in the Supreme Court. The government split the recommendation in half and notified the appointment of Justice Malhotra towards the end of April 2018, after more than 100 days. A day or two later it raised frivolous objections to the recommendation of Justice Joseph. The SCC reiterated his recommendation in July 2018 (it should have done so earlier). Separately, the SCC also recommended two other chief justices for appointment to the Supreme Court. Eventually, all three appointments were notified in August 2018. Significantly, Justice Joseph was ranked junior to the other two judges in the Supreme Court, thereby losing his seniority to both and also to Justice Indu Malhotra.
Analysis of appointments and disappointments
Delaying the appointment of judges to the Supreme Court is akin to dangling a carrot inviting them to heel. In an interesting analysis by LiveLaw, it is pointed out that a recommendation was made for the appointment of four judges on October 30, 2018 and they were appointed in 2 days (speed post?). In January 2019, two judges were appointed within 6 days of the recommendation, after the CJI controversially did not send an earlier recommendation to the government. In April 2019, the SCC recommended two judges for appointment, but the government returned the recommendation for reconsideration on the ground of their seniority, which incidentally was not raised as an issue earlier that year. The point sought to be made is that the government can raise meaningless and whimsical objections at will with a view to stall the process.
In May 2019, the SCC reiterated the April recommendation and also separately recommended two other judges for appointment to the Supreme Court. All four cases were processed within 13 days and appointments were made. A recommendation made in August 2019 for the appointment of five judges to the Supreme Court was processed within 21 days.
The roller coaster processing of appointments continued in 2021 and 2022. A recommendation of nine judges made in August 2021 was processed within 9 days. A recommendation in May 2022 of two judges was processed in 2 days (speed post again?). Then came a waiting-for-Godot drama. Chief Justice Dipankar Datta of the Bombay high court was recommended for appointment by the SCC of five judges on September 26, 2022. The government took its own sweet time in processing the case, kept everybody in suspense and eventually notified the appointment after a delay of 75 days. What a shame!
The government has not stopped playing games with the SCC. On December 13, 2022 the SCC recommended four chief justices for appointment to the Supreme Court. The government has yet to process the recommendation, even after a month. If the government says that India is the only country in the world where judges appoint judges, India is also the only country in the world where the government ‘dis-appoints’ judges.
I hope this essay gives an indication of where we are headed. You don’t need Google Maps for it. If the government can play games with the Supreme Court and get away with it, once again ask yourself the question: Do I want an independent judiciary or a committed judiciary and how will I get it?
The full complement of judges of the Supreme Court must sit and introspect and decide how to preserve and protect the independence of the last bastion from a government that seems bent upon destroying its independence. Please do everything possible. Independence of the judiciary is a basic feature of our republican constitution and democracy. Nobody should be permitted to destroy a basic feature of our constitution.
The Supreme Court should introduce transparency in the process by citing the chronology of dates and events when it makes a recommendation, starting with the date the HCC made its recommendation right until the date of the recommendation by the SCC. The government is terribly opaque in its dealings, more than the SCC, but that does not justify the SCC being opaque.
The government has plenty of muscle, but little of it is moral muscle. The Supreme Court must learn to flex its moral muscle – it has the support of everybody, except a few lackeys of the government.
The Supreme Court must appreciate that every institution makes mistakes, including the Supreme Court. The effort must be to minimise those mistakes and not repeat them, however minor they may be. One mistake of the recent past is that the Supreme Court did not stand up to the government when it should have in matters of appointment of judges. Why is it taking months and years to process the recommendations of the SCC and what is the Supreme Court doing about it, except letting the government get away with it? Aren’t we, the citizens of India, entitled to know what’s going on and why?
What should the government do? Stick to its task of governing the country and try not to govern the Supreme Court.
Justice Madan B. Lokur is a former judge of the Supreme Court of India.