In The Name Of Independence

The judiciary is being undermined on multiple fronts. Damage control is imperative

Written by Rekha Sharma | Updated: May 1, 2018 1:10:56 am

The judiciary is being undermined on multiple fronts. Damage control is imperative

The truth is that the independence of the judiciary is besieged from multiple fronts

All the players claim their actions are to uphold the independence of the judiciary. The truth is that the independence of the judiciary is besieged from multiple fronts — from some of its own, political parties and the government as well, writes Rekha Sharma.

Of late the Supreme Court of India, to be precise the Chief Justice of India, has been in the news for the wrong reasons. It all started with the holding of a press conference by the four senior-most judges of the apex court expressing their disenchantment with the working of the chief justice. They went as far as to say that they were compelled to go public as in their perception, democracy and the rule of law were in peril.

By now, we all know that the undercurrent of this disenchantment was the allocation of Judge B M Loya’s case to a junior judge, ignoring their seniority. However, no one knows whether by this action the judges were seeking the government’s intervention to resolve the impasse between them and the chief justice or if they were expecting some divine intervention.

While the Chief Justice of India, despite such an unprecedented step taken by his four senior colleagues, made no outward effort to dispel the impressions that were sought to be created about him, the Congress party was quick to seize the opportunity to berate him.

He has been accused of acting arbitrarily and at the behest of the government of the day. After the Supreme Court declined to set up a Special Investigation Team (SIT) in the matter of the death of Judge Loya, it was no holds barred for the Congress and for the lobby spearheading the tirade against the chief justice. They came out all guns blazing against the chief justice and took the extreme step of initiating impeachment proceedings against him.

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The Congress knows all too well that the impeachment will not succeed. Not only the numbers are not on its side but the allegations also have little or no merit. And yet, a step towards impeachment has been taken, all in the name of the independence of the judiciary.

The government of the day prides itself in repeating ad-nauseam that it is a government that works and its leaders had valiantly fought the Emergency and were at the forefront in condemning the supersession of judges by then Prime Minister Indira Gandhi. But it took three months to return Justice K M Joseph’s file, who was recommended by the Supreme Court collegium for elevation to the apex court, citing his low ranking among judges across India.

It is well known, especially in legal circles, that seniority is not the real reason as there are earlier instances when juniors were elevated over seniors.

The truth seems to be that Justice Joseph is being punished for his judgment striking down the action of the governor of Uttarakhand when the latter imposed President’s rule in the state without a floor test. It is perceived to be an attempt to discipline judges who are not in sync with the government. It is also an attempt to scuttle the unanimous recommendation of the collegium, ignoring the recent judgment of the Supreme Court, which held that the judges will have primacy in the matter of appointments.

As a first step, in my humble view, the four judges who held the press conference should distance themselves from impeachment proceedings, lest whatever they said is alluded to by the votaries of impeachment to garner support. It is necessary because references to the press conference are being made obliquely, suggesting that some judges are also unhappy with the conduct of the chief justice.

As for the Congress, it must rethink any further move towards the process of impeachment and if no one else, it should at least listen to saner voices within the party, especially of Manmohan Singh who is believed to have declined to sign the memorandum given to the chairman of the Rajya Sabha. And, above all, the government should respect the recommendations of the collegium in the matter of the elevation of Justice Joseph. After all, it has come from five wise men.

Last, but not least, the Chief Justice of India should make every effort to unruffle the ruffled feathers and assuage the feelings of his estranged brothers for the sake of peace, harmony and brotherhood.

The writer is a former judge of the Delhi High Court

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