By far the most significant judgment of the last year has been the judgment in what has come to be known as the NJAC case. A Bench of five judges of the Supreme Court decided that the Act which put in place a Commission for the appointment of judges went against the basic feature of the Constitution, in that it interfered with the independence of the Judiciary, since its composition included representation from the executive. This not only undermines the independence of the Judiciary but also goes against the more hallowed principle of separation of powers between the executive and the judiciary.
Power to appoint or transfer Judges was now to be exclusively in the hands of the five senior-most judges of the court. The judgment was universally supported by civil society for its boldness, and its fierce defense of independence of the judiciary. Many of us who were earlier in favor of a commission were no longer supporting it given the tendency of all governments to interfere with the functioning of the judiciary. We celebrated the judgment as being in defense of democratic rights. Events that have transpired since then have created a doubt about the system of vesting this power exclusively in the hands of Judges. It seems like we are getting into the proverbial dilemma of choosing between the devil and deep sea. Rather, what they demonstrate is that the choice between the executive and the judiciary is one between the devil and the deep sea. Or even more significantly what is now clear is that there is a consensus between the executive and the judiciary about who to appoint as a judge and who to transfer. There is indeed no conflict or any great disagreement there.
Power seems to be a difficult thing to handle for the judiciary, it seems easier to give it away. There is a controversy relating to the Memorandum of Procedure for the appointment of judges, a task which the Judiciary left to the Government. That was the first post-NJAC judgment mistake. If the appointments are to be made by the Judiciary, why should the government lay down the procedure, why not the judges themselves? Then came the news that the government wanted to retain the power to disapprove of or strike down a proposal made by the Collegium on grounds of “national interest”.
This is nothing short of reintroducing control through the back door. While the controversy remains unresolved, we have seen transfer of judges with no valid explanation as to why they have been transferred. The first occasion arose when Justice Shakdar of the High Corut of Delhi was transferred to Chennai. He authored the Priya Pillai judgment which ordered the cancellation of the off loading of the Green Peace activist and would have allowed her to travel to London and present her case. This is what he said in his judgment :
“The sense that I get, upon perusal of the stand taken by the respondents in their pleadings, is that, they do not approve of the view expressed by civil right activists, in forums outside the country, which tend to portray, according to them, an inaccurate picture of the state of human rights in the country. In other words, the respondents are concerned by the fact that such portrayal generates an atmosphere, which retards investment of foreign funds, in vital infrastructural projects.
Whether this concern of the respondents is valid or not, in my opinion, is not the issue. The reason for the same is, that, developmental activities, not now, but for ages have always had a counter point. The advancement in knowledge base, and the ability of common citizen to access information vis-à- vis public projects, has only made dissent more strident and vigorous. Whether one model of development has to be rolled out as against the other, is an on-going debate. This debate impinges upon all kinds of developmental projects, which includes project, such as, mining, setting up of nuclear plants, construction of roads through forests, acquisition of land for housing projects/ industries, construction of highways, roads, dams and bridges etc. – none of which have stopped if, the executive of the day, is convinced of their need and necessity. The mere fact that such debates obtain, or such debates metamorphose into peaceful protests, cannot be the reason for curtailing a citizen’s fundamental rights. In this case, Ms Pillai’s right to travel abroad and interact with relevant stake holders (i.e., the British Parliamentarians), to persuade them, to have entities incorporated in their country, to fall in line, with the developmental ethos, which is close to her ideology and belief, cannot be impeded only because it is not in sync with policy perspective of the executive.”
The judge held that no person could be prevented from questioning the development paradigm of the government on Indian soil or abroad. He was transferred by the collegium of judges of the Supreme Court. Protest by a group of senior lawyers yielded no results, the collegium did not feel obliged to answer to the Bar or explain its reasons for the transfer. It hardly need emphasizing that transfer carries with it a stigma, especially when unexplained. Now hard on the heels of the Judgment authored by the Chief justice of Uttarakhand, holding that President’s rule in Uttarakhand was void as there was no material to support the need for President’s Rule. In the words of the Judge what was at stake was democracy itself:
“But, the question in this case is whether, in the admitted facts, this principle must be harnessed to discountenance the plea against the imposition of President’s Rule. Petitioner is a former Chief Minister, who stood dislodged by the imposition of President’s Rule. What is at stake is not only the personal interest of the petitioner. What is at stake would be democracy at large, if we find merit otherwise in the case of the petitioner. What is the soul of the matter is whether, in the federal/quasi-federal set-up we have, it is open to the Central Government to get rid of democratically elected Governments and introduce the attendant chaos in the system undermining the confidence of a little man, who stands with a little white paper, in the words of Sir Winston Churchill, to cast his precious vote battling snow, the scorching heat and the rain. When the stakes are as high as this, should we throw out the petition on this ground?”
While the appeal is still pending, the Chief Justice who spoke up for the “little man” and, may I add the little woman, has been transferred to Andhra Pradesh. Be it noted that one of the judges who must have taken the decision to transfer, is also a Judge hearing the appeal against the judgment.
Where is the justice? the Chief Justice of the High Court may ask. But there is no forum in which the question can be asked, since the Supreme Court has held that a transfer of a judge cannot be questioned.
So there you have it, no accountability to the law, no accountability to the public but, yes, we do have a brilliant judgment upholding the independence of the judiciary. Independence from whom is a question that we may be tempted to ask.
Given the NJAC judgment, the Supreme Court owes us an explanation how the power that was entrusted to the court had been handled and whether it has been used for the purpose for which it was entrusted, that is the protection of the rights of the people, the strengthening of democratic institutions.
These acts of transfers have not inspired confidence in the judiciary. The problem is the absence of a conscience keeper and that the voice of the Bar is missing. The court has no critics of any worth and any institution which has no critics , is bound to decline. The other issue is that institutions and those who run them have become impervious to criticism, and, so one wonders, what is the future of India’s failing democracy. One institution alone cannot be expected to hold the flag of democracy high, but the judiciary succumbing to the expediency at the end of the day could prove to be one too many. The winds of political change, have overtaken the nation.
Issues of great significance remain to be decided by the Court on a day to day basis; what is the constitutional validity of the Aadhar law disguised as a Money Bill? Is there a right to privacy? Will Muslim personal law stand the test of constitutionality? Will the court direct the registration of an FIR in the current scams?
These and other issues inevitably involve sitting in judgment over the policies of the governments in power. How will a judiciary that is not doing everything in its power to assert and maintain its independence, deal with these issues?