Opinion In the transfer of Sambhal judge, a lesson for the judiciary
Instead of protecting its independence, if the judiciary throws its brave under the bus, it imperils the independence of the judiciary and hence our very democracy
The recent transfer of the Sambhal judge and the spontaneous protest against it by the local bar indicate that this phenomenon of sacrificing the hard-fought judicial independence is gaining traction with every passing day Written by Sanjoy Ghose
When Jawaharlal Nehru had to appoint a successor to Chief Justice Patanjali Sastri, he baulked at the obvious choice: Justice Meher Chand Mahajan. In his previous avatar as Kashmir’s Prime Minister, Mahajan had had many a run-in with Nehru. However, in one voice, the judges of the apex court told him: Follow seniority, or else you will have all our resignation letters by the end of the day. Thus began a tradition of executive deference to the judges in all matters related to the judiciary — appointments, transfers and postings.
Nehru’s successors, by and large, honoured this compact until Indira Gandhi’s socialist brigade, led by Mohan Kumaramangalam, demanded a “committed judiciary”. The supersession of the Justices J M Shelat, K S Hegde and A N Grover for penning the “majority” view in Keshavananda Bharati, fettering Mrs Gandhi’s power to amend India’s Constitution, was one of the first blows to India’s judiciary. When the Janata Party came to power, there was allegedly a move to supersede Justice Chandrachud for his ruling in the Habeas Corpus Case. Morarji Desai decided against it.
So by and large, before the Supreme Court in the Judges Case interpreted the term “consultation” to mean “binding consultation” and literally usurped the power to appoint judges, both the executive and the judiciary followed an unwritten custom of usually deferring to judicial wisdom.
The series of cases known as the “Judges Cases” gave the nation the system of a “collegium.” Five senior-most judges would decide on who would sit in the top court. For High Courts, the collegium would be constituted of the three senior-most judges. If the executive was not on the same page, the government was given the right to send back the recommended names for reconsideration. However, if reiterated, the executive had no choice but to appoint. The justification offered for this takeover was to insulate the judiciary from political interference by ensuring that independent and competent persons are appointed.
The political class initially was united in its opposition to this judicial usurpation. No wonder the first constitutional amendment brought by the Modi government, introducing the National Judicial Appointments Commission, had unanimous legislative backing. While the Court struck this down to protect its turf, it left a loose end — both parties had to flesh out a Memorandum of Procedure on how to coordinate in matters of judicial appointments. This is still to see the light of day.
However, in the decade that has followed, we have witnessed a near capitulation of the goal of the “Judges Cases”. The collegium system has been subverted primarily by inverting the system. The scheme contemplated the judges picking the nominees and then the government vetting the chosen ones through the Intelligence Bureau and other agencies. Over the years, the government has sat on names recommended without prior consultation. Names are often objected to on the flimsiest of grounds. In some cases, the government has chosen to simply sit on recommendations even after they have been reiterated, such as in the case of Saurabh Kripal for the Delhi High Court.
The recent case of Allahabad HC transferring the Chief Judicial Magistrate (CJM) of Sambhal, who on January 9, ordered Sambhal police to file an FIR against the CO and SHO during the 2024 Sambhal violence, needs to be read through this transition.
The deference to the executive sadly does not end at judicial appointments. Over the past years, too many glaring instances have highlighted how bold and upright judges who have been solidly supported by the Bar, which is best suited to assess judges, have had to “pay” for bravely standing by the Constitution. Justice Muralidhar, who held the midnight court as rioters burnt Delhi and ordered a criminal investigation into hate speeches of politicians of the ruling party, was transferred out of Delhi. Thereafter, he lost out on elevation to the Supreme Court.
The sordid saga of Madhya Pradesh High Court Justice Atul Sreedharan played out publicly last year. He had directed criminal action against a Minister for his offensive comments against Colonel Sofiya Qureshi. He was promptly moved out to neighbouring Chhattisgarh. Even this was not acceptable to the government (as recorded in the collegium minutes), and he was finally transferred to the Allahabad High Court, where relative seniority seems to ensure that he would not make it to the HC Collegium.
The recent transfer of the Sambhal judge and the spontaneous protest against it by the local bar indicate that this phenomenon of sacrificing the hard-fought judicial independence is gaining traction with every passing day. If the Court does not stand with its bravest and best judges who dare to stand straight in difficult times, if instead of rewarding such courage, such judges face transfers, if instead of protecting its independence, the judiciary throws its brave under the bus, it imperils the independence of the judiciary and hence our very democracy.
The writer is a senior advocate, Supreme Court of India
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