On October 20, 1975, the then Chief Justice of India (CJI) A N Ray convened a 13-judge bench to hear whether the basic structure doctrine, as enunciated by the Supreme Court in the Kesavananda Bharati case in 1973, restricted Parliament’s power to amend the Constitution. It was the period of the Emergency and Ray had been appointed CJI by the Indira Gandhi government after superseding three of his seniors. She, her law minister and attorney general had been seeking a review of the basic structure doctrine from various forums but the origins of a formal demand for the review remain unclear to this day.
During the hearing in November 1975, lawyer Nani Palkhivala said that a review could not be entertained as an “oral request from the government”. Ray responded that the request had come from some states but Tamil Nadu, Gujarat and Jammu and Kashmir denied that they had made any request. The judges on the bench started making disparaging remarks about the hearings to each other, and the word reached Ray. On November 12, 1975, as the judges assembled in the CJI’s chambers to enter the courtroom to resume the hearings, Ray informed them that he had decided to dissolve the bench. Ray then entered the courtroom and publicly announced the decision.
A simplistic view would assert that it was merely an internal fight between the CJI and other judges of the Supreme Court, in which the CJI had succumbed. In reality, it was the Supreme Court which had protected its institutional power against an authoritarian government because the other judges had conveyed their dissatisfaction to the CJI. The real battle was not between the CJI and the judges, but between the judiciary and the executive. The same error is being repeated now when the recent events in the Supreme Court are seen through the prism of personality clashes between the CJI and other judges, and not as a battle for institutional integrity and independence of the judiciary against the executive.
This becomes evident once you consider the two letters written to the CJI — copied to all the judges of the Supreme Court — by Justices Jasti Chelameswar and Kurian Joseph. Justice Chelameswar has pointed to the impropriety of the government writing directly to the High Court despite a reiteration by the Collegium. He asked for a full court on the judicial side to discuss the government’s role and approach towards the appointment of judges to various high courts. Justice Joseph’s letter was strongly worded but it asked for a bench of seven senior-most judges to consider the case of government sitting on the two names recommended by the Collegium for appointment to the Supreme Court.
Both the judges have suggested mechanisms — judicial, not administrative — which would move the spotlight away from the CJI and involve the judiciary, collectively. This is also buttressed by the fact that their letters were sent to all the judges of the Supreme Court, unlike the letter by four senior judges to the CJI last November, which was made public in January. The four judges, which included Justices Chelameswar and Joseph, were then criticised by their other colleagues for being kept in the dark. That issue has been addressed now.
Moreover, the two letters also do not target the CJI personally but are highly critical of the government. While Justice Chelameswar said “our unhappy experience has been that the government’s accepting our recommendations is an exception and sitting on them is the norm”, Justice Joseph highlighted that “the failure to discharge their (government’s) duty by sitting over on the recommendations of the Collegium and doing nothing, in administrative law, is abuse of power”. They explicitly state the threat to “the independence of the judiciary” and the fear “of ceding our independence and our institutional integrity to the executive’s incremental encroachment”.
Even though Justice Chelameswar cleared the air on attempts to impeach the CJI — when he said that impeachment cannot be an answer to every question and Justice Joseph noted in his letter that CJI’s personal efforts had not borne fruit — it does not mean that there are no internal differences between the judges and the CJI. But that is still a minor subplot to the major flashpoint in the ongoing drama — that is between the executive and the judiciary. The battle lines are drawn clearly.
By attempting to control appointments of judges to the high courts and the Supreme Court, the government is sending a clear message to the judiciary. Its earlier attempts to push the NJAC bill through Parliament and refusal to expedite the finalisation of the MoP has highlighted its discomfort with an independent judiciary. There has been a quantum jump in the centralisation of the power in the government and the ruling party, the parliament has been tamed and the exercise of power has moved from the collective responsibility of the cabinet to the personality of the prime minister. In this over-centralised mode, the government’s designs to control the Supreme Court seem like an attempt to reduce three branches of the democratic government to two.
The government has thrown a gauntlet to the judiciary. The Supreme Court judges are responding to that challenge and asking their CJI to rise to the occasion. In 1973, when Indira Gandhi superseded three judges to make Ray the CJI, her colleague, Mohan Kumaramangalam had been the driving force behind the decision. He defended the government’s position in various speeches, articles and in a booklet. Granville Austin recounts that while writing the booklet, Kumaramangalam dashed into C Subramaniam’s office, asking, “Can you think of a title?” Subramaniam’s special assistant, S Guhan interjected: “How about Chamcha CJ?” No one has made that suggestion this time around. At least, not so far.