Fighting For Judicial Swaraj

The statue of Mahatma Gandhi bestrides the entrance to the main building of the Supreme Court. An epitome of sobriety, Gandhi stood for conscientious labour even in the face of adversity. The statue serves as a constant reminder to the legal coterie, serving the apex court, to stand with the truth. ‘Satyamev Jayate’—as he would have wanted us to remember. He would have wanted both the lawyers and judges alike to strive for justice, truth and righteousness; catchwords that no longer seem to resonate among the men-in-robes.

Reminiscing the Dark Days of the Emergency

The recent furore over instances of political interferences in judicial autonomy has revived stories of judges yielding to political pressure during Indira Gandhi’s Emergency of 1975. The issue of detainees arrested without a trial under the draconian Maintenance of Internal Security Act came before the Supreme Court in the historic Habeas Corpus case. The Supreme Court was asked the question: Whether, after an emergency being declared, the Presidential Order under Article 359 can preclude a writ of habeas corpus? The judiciary succumbed to intense political pressure from Indira’s government. The majority view, held by CJI A.N.Ray, Justice Beg, Justice Chandrachudh and Justice Bhagwati, favoured the government. They held that no person has a locus to move any writ petition under Article 226 before a High Court for habeas corpus or any writ or order or direction to challenge the legality of an order or decision

Justice H.R Khanna: The Paragon of Probity

Holding a contrarian opinion was Justice H.R. Khanna. With the torch of liberty held aloft, he opined that,with rule of law at stake, the judiciary cannot be rendered mute and silent to executive action. “The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive”, he added. He ended by quoting Justice Charles Evans Hughes: “A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

Justice Khanna knew the price of his dissent. He was aware that, unlike his fellow judges who chose to toe the line, his act of heresy would cost him the chief Justice-ship of India. And so it did. His junior Justice M.H. Beg was chosen over him by the government as their preferred choice for the coveted post.

Justice Khanna always stood for personal liberty. Even as he was at the crossroads where one path led to the highest judicial office and the other to censure, he chose to tread on the path of truth and liberty. He could have easily chosen to side with the government, soon to rise in the ranks of the judiciary. Justice Khanna however chose justice over inequity, individual freedom over personal interest, dissent over submission and truth above all. Perhaps his life-size portrait hanging in Supreme Court’s courtroom number 2 is meant to remind future lawyers and judges of the importance of honesty and integrity. 

The recent events that have unfolded have raised suspicions over the integrity of the judiciary. Two distinct instances have surfaced highlighting blatant disregard to the hallowed independence of judiciary.

Carrot and Stick Diplomacy

First arose, the issue of elevation of former Solicitor General of India Gopal Subramaniam as the judge of the Supreme Court. A highly acclaimed lawyer, Mr. Subramaniam became a senior advocate at the age of 35: youngest to hold the post. Between 2005 and 2009 he served as the Additional Solicitor General and from 2009 to 2011 as the Solicitor General of India. As a Special Public Prosecutor he successfully brought home the charges against lone surviving terrorist, Ajmal Kasab. He also assisted the court as amicus curiae in the Sohrabuddin fake encounter case.

The case involved an alleged encounter orchestrated to kill one Sohrabuddin along with his wife while they're travelling in a bus. It was later discovered that another man, Tulsiram Prajapati, who was travelling with the couple was missing and soon found dead. Subramaniam's active role in the sensational murder of Sohrabaduddin ensured that, despite Gujarat Police's best effort to obfuscate the investigation, the case is impartially investigated by the CBI. His efforts ensured that Amit Shah, the now BJP President, received bail oncondition of his non-entrance to the state of Gujarat.

Mr. Subramaniam's act of effrontery did not go down well with the BJP government. Soon after coming out with a decisive mandate, the Modi-led government began with rewarding its closest friends and chastening its enemies: an act typical of the carrot-and -stick approach. The collegium comprising the four senior most judges of the Supreme Court recommended 4 names for elevation to the apex court: Rohinton Nariman, Justice Arun Mishra (CJ of West Bengal High Court), Justice Adarsh Kumar Goel (CJ of Orissa High Court) and Gopal Subramaniam. The government, in a move that flew directly in the face of established constitutional principles, blithely segregated the names and elevated all but Mr. Subramaniam to the bench.

Modi's favourite loyalists, who had previously defended him in court, have been rewarded. Ranjit Kumar and Tushar Mehta, who defended Gujarat in 2002 and in various fake encounters, have been made the Solicitor General and Additional Solicitor General. Mukul Rohatgi, who had previously appeared for Gujarat in the 2002 riots, too received the figurative sweet carrot as he clenched the position of the Attorney General of India.

Mr. Gopal Subramaniam, on the other hand, got chastised by the proverbial stick. The government sought aid of the IB and CBI to vindicate its stand. It resorted to petty mudslinging as it surreptitiously released reports of his alleged involvement in the tax-evasion case of corporate-lobbyist Nira Radia and in the 2G case: both ill-founded.

A face-off emerged between the executive and the judiciary that compelled CJI RM Lodha to clarify that the independence of the judiciary will not succumb to executive pressure. The government clearly won as Gopal Subramaniam withdrew his candidature. In his letter to the CJI, he wrote, "The events of the past few weeks have raised serious doubts in my mind as to the ability of the executive government to appreciate and respect the independence, integrity and glory of the judicial institution.”

A political party that grew out of dissent and revolution against executive tyranny had attempted to transgress into the judicial realm: a fine case of irony.

Katju’s Revelations

The second issue highlighting possible impropriety by the judiciary in the face of political pressure has surfaced pursuant to recent revelations by the Chairman of the Press Council of India Justice Markandey Katju. A former Supreme Court judge, Justice Katju has in his blog post revealed how a sitting judge of the Madras High Court received extension of tenure thrice only to be permanently confirmed as permanent judge. The chain of events occurred despite true allegations of corruption against that judge.

Justice Katju claims, without taking names, that on becoming the Chief Justice of the Madras High Court in 2004, he came to know of possible allegations of corruption against a sitting judge. Entries of corruption against that judge had appeared to be deleted by the former Chief Justice of the Madras High Court. Justice Katju wrote to the then CJI Justice R.C Lahoti to conduct a secret IB enquiry to unearth the truth. He was later personally informed by the CJI that the adverse entries against him were found to be true.

Justice Katju adds that the Supreme Court collegium, appointed to suggest names for judges of High Courts in 2005, comprised the then 3 senior most judges: CJI Justice R.C Lahoti, Justice Y.K Sabharwal and Justice Ruma Pal. The collegium initially recommended discontinuation of the judge after expiry of his 2 year term in view of the adverse IB report. However, CJI Justice R.C Lahoti soon recommended a year extension to the judge that was later extended by the new CJI Justice Sabharwal and finally confirmed by the subsequent CJI Justice K.G Balakrishnan.

Even after proving the allegations to be true, Justice Katju, to his dismay, found the judge to have received successive extensions and subsequently confirmation as a permanent judge. The former Supreme Court judge attributes the apparent change-of-heart to intense political pressure from the UPA government which was in power with support from its allies. He holds at fault a certain ally of the government: a political party in Tamil Nadu that was supporting the corrupt judge. He argues that the Manmohan Singh-led UPA government was threatened by that regional party to either support their candidature or see his government collapse at the center. At the behest of a senior Congress leader, the government then pressurized Justice R.C Lahoti who relented to his demand by extending the tenure of the tainted judge.

Lifting the Veil

Justice Markandey Katju did not mention names in his revelation. However, in this mist of obscurity, obvious are the identities of those in question. The tainted judge in question was Late Ashok Kumar who died in 2009. The political party from Tamil Nadu being referred is the DMK which was a popular ally of the UPA government. The Chief Justice who deleted adverse entries against him to elevate him as an Additional Judge of the High Court of Madras was Justice N. Dinakaran. The senior Congress leader who communicated the party’s wishes to Justice Lahoti was the then law minister H.R Bhardwaj.

Mr. Ashok Kumar rose to fame in 2001 as he took strong objection to DMK patriarch Karunanidhi’s arrest in the famous flyover scam case. The DMK chief had been arrested near midnight; evoking public sympathy for the old man. He sided with the DMK. Reprimanding the police authority, he is believed to have said: “Mr. Karunanidhi was made to wait before the central prison like a beggar. Everyone saw it. The whole world saw it on television. He is a 78-year-old man suffering from various health ailments. Is your heart made of muscle or mud? What was the pressure on you?" He also granted Karunanidhi’s son Stalin bail in 2001.

Late Mr. Kumar’s solidarity with the Tamil party rewarded him well. In 2003, he was rewarded with elevation to the Madras High Court. In 2005 too, the DMK government sided with the DMK loyalist; compelling the UPA to reverse the collegium’s decision.

Judicial Independence or Lack Thereof

Despite the unanimous stand of the Supreme Court collegium on Justice Ashok Kumar, the UPA government resorted to strong-arm tactics to make the judiciary toe its line. The result: the Chief Justices of India threw in the towel without asserting their independence. CJI Lahoti extended his tenure as the Additional Judge, CJI Sabharwal followed suit and CJI Balakrishnan made him permanent in another High Court. By failing to restate their sovereignty, what message have the highest-ranking judges conveyed to the nation at large?

The Indian citizens have bestowed immense faith in the judiciary. They largely feel cheated by their elected representatives who meet them only once in five years. The judiciary seems to them as a beacon of hope: a guiding light-house that steers the nation in the right path. At the helm, they expect honest, virtuous and incorruptible sailors determined to sail the country to glory. How do they feel when they find out that their captain is corrupt?

The disclosures made by Justice Markandey Katju call for serious debates on the propriety of our judges and their nexus with politicians. Instead of targeting the messenger, we must focus on changing the status quo. A democratic society is assessed at the touchstone of judicial integrity. An impeccable justice delivery system with scrupulous judges will advance this nation to glory.

Till then, Bapu’s statue would continue to remind us to fight for judicial swaraj. 

About The Author:-

Anmol Vashisht is Assistant-Editor at 'For the Sake of Argument'. He regularly writes on contemporary issues of politics, law and international affairs. As a budding lawyer, he hopes to change the system: one article at a time.

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