By encroaching upon the domain of the representatives of the people and the executive, the higher judiciary is threatening to damage our fabric of democracy. This could be unhealthy in a democracy, which works on the separation of powers, and checks and balances.
India’s Supreme Court has effectively driven a coach-and-four over the Constitution. After arrogating to itself the power to appoint judges through two judgments in the 1990s, and killing the National Judicial Appointments Commission in October 2015, it is now running roughshod over the constitutional scheme under which the legislature makes laws and the judiciary interprets them. The highest court and some of the High Courts of the country have become a law unto themselves, making and overturning laws through judicial pronouncements and verdicts.
Judges Appointing Themselves
Their lordships have been over-reaching for many years now, but they have been on a sustained warpath ever since the Modi government, soon after it created history by becoming the first government to be voted in with a majority in the last 30 years, legislated the National Judicial Appointments Commission (NJAC), which was passed near unanimously by both Houses of Parliament and more than half the state legislatures.
The court was miffed that its power-grab of the 1990s was being reversed. In two judgments, called the second and third judges cases, the Supreme Court elbowed the government out of judicial appointments. In the name of ensuring judicial independence, it effectively erased the intent of Article 124 of the Constitution which states that the President shall appoint judges in consultation with the Chief Justice of India (CJI) or other judges as “he may deem necessary”.
But after two judgments, this power shifted first to the CJI, and then to a five-member collegium headed by the CJI. It was to restore the original balance of power that the NJAC was enacted, but a five-judge Bench decided it was unconstitutional.
What the Modi government effectively sought to do with the NJAC was make the process of judicial appointments more transparent, even while retaining some say for the government, but the Bench, headed by Justice J.S. Khehar, who becomes the next CJI in January, rejected the idea.
So it’s back to the collegium. Realising that it has completely rejected a law mandated by the people of India, it offered the government a sop: writing up the memorandum of procedure for the appointment of judges. It is here that the executive and the judiciary are still stuck, as the government is seeking to insert a clause that allows it to reject collegium nominees.
The reason why the Supreme Court can act so brazenly to sideline the intent of the Constitution is simple: with the ruling party and the opposition at daggers drawn most of the time, the court knows that Parliament will not pass another, better crafted version of another NJAC since the Congress won’t agree. In fact, after acquiescing in the passage of the NJAC, the Congress is now making a big deal about deteriorating government-judiciary relationship, which is a dog whistle to the judiciary that it will not allow another law on this subject. The judiciary has been emboldened by this lack of political unanimity.
The question is this: why is the Congress so happy to let the judiciary run amok, unless it expects never to be in power? The answer is simple: the Congress, which has appointed most of the judges in the current Supreme Court and the High Courts, has used less transparent ways to influence the judiciary.
For example, between January 2008 and mid-2012, some 21 Supreme Court judges retired; of them, 18 were re-employed in various tribunals and statutory and non-statutory commissions. So the judiciary could be enticed with post-retirement jobs.
It is the Modi government’s efforts to create a law that will rein in the judiciary’s power to appoint its own— a situation that exists nowhere in the world— that is being opposed tooth and nail. It is about protecting a vested interest, the right to appoint who they want through an opaque process. Nothing threatens their lordships more than the possibility that future judges may not be those they like.
The impasse is now more than a year old, with the oddest demand of the judges being that they be allowed to appoint themselves through the dubious collegium system. Reacting to the striking down of the NJAC Bill, Attorney-General Mukul Rohatgi had censured the judges’ act last year as “a flawed judgment ignoring the unanimous will of the Parliament, half the state legislatures and the will of the people for transparency in judicial appointments”.
The Congress was but duplicitous on the question of NJAC. When the bill was turned down by the Supreme Court, the party said that the judgment reflected the fact that the judiciary did not trust the NDA government. This, even as it was the Congress that had initiated the bill during the UPA rule!
Calling its bluff, founder of Lok Satta NGO and political party, N. Jaya Prakash Narayana had shown Swarajya a letter of support to the legislation from no less than the Congress president and UPA chairperson Sonia Gandhi that read: “It may be recalled that the NJAC Bill was initiated during the UPA regime. The Congress Party supported the passage of the Bill in Parliament and the NJAC Act has been notified by the Government in April 2015. We continue to support the NJAC.”
Interference In The jobs Of Legislature And Executive
Hardly when the Modi government had begun its innings, the Supreme Court surprised political observers by questioning Lok Sabha Speaker Sumitra Mahajan why no Leader of Opposition (LOP) was being declared. As though the then CJI, Justice R.M. Lodha, and Justices Kurian Joseph and R.F. Nariman didn’t know that there was no provision for an LOP for an opposition party that could not secure even one-tenth of the Lower House seats! Were their hearts not bleeding for a Congress that was reduced to a mere 44 seats in the 2014 general election?
It got on Finance Minister Arun Jaitley’s nerves finally. Angered over a Supreme Court judgment on creating another fund for drought relief, he wrote in his blog recently, “Step by step, brick by brick, the edifice of India’s legislature is being destroyed…We have the National Disaster Response Fund and the State Disaster Response Fund, and now we are being asked to create a third fund…India’s budget-making is being subject to judicial review.”
Curiously, the Congress, which is otherwise on the same page as the government in insisting upon the separation of judiciary from the executive, had demanded the formation of a dispute-resolution authority for the GST rate headed by a judge. In response, Jaitley had said, “Why do you want to surrender parliamentary and state legislature’s jurisdiction to the courts? Taxation is the last of the powers with the legislature and you are talking about surrendering it!”
In mid-August 2016, a Bench headed by Chief Justice of India T.S. Thakur ordered the levy of a one percent cess on diesel SUVs and vehicles with engine capacities above 2,000 cc, thus entering directly into taxation territory— which is none of its business. Two years ago, the court decided that it would probe black money through its own Special Investigation Team (SIT)— this time in tax law enforcement territory. Again, none of its business.
Some other recent court judgments have also encroached directly on the legislative terrain, where the Speaker’s word should be law. The top court recently told the Speaker of the Uttarakhand Assembly how to conduct the proceedings of the House in a confidence vote. It has taken a shine to the Food Security Act, and has taken some provincial governments to task for not implementing it earnestly, when this Sonia Gandhi-mandated law was imposed from above by the Centre on states. Another case, where the Lok Sabha Speaker’s verdict on the Aadhaar Bill, which she declared to be a money bill, is also likely to come up in court. One can only hope the top court does not meddle with the Speaker’s decision, which is supposed to be final on the aspect of whether a bill is a money bill or not.
A devil’s advocate might argue that the court has to adjudicate on any matter brought to its notice, but the courts have repeatedly betrayed a penchant for populism rather than just legal acumen in some of their recent judgments. Through a 2014 judgment, the Supreme Court prioritised the rights of farmers and the revival of a sick company over a bank’s right to recover dues based on iron-clad collateral. On another occasion, the Supreme Court directed the RBI to set up a panel to recover bad loans.
Turning an environmentalist elsewhere, the highest court of the country debarred non-CNG taxis from plying on the roads of Delhi. As mentioned earlier, it also banned for nearly eight months the registration of new diesel cars with engine capacity above 2,000 cc, apparently on the unscientific presumption that even a new diesel car was environmentally worse than a badly maintained, old petrol vehicle.
And when it removed the ban, it imposed a tax. The Chairman of the National Green Tribunal (NGT) that thoughtlessly sought to take old diesel vehicles off the road is a former Supreme Court judge: Swatanter Kumar. In making the law through judicial edict, the Brethren are of one mind.
Right after his appointment as the Chief Justice of India, T.S. Thakur had showered praise on Arvind Kejriwal’s odd-even formula, thereby throwing the weight of his position behind the Aam Aadmi Party’s Tughlaq-esque firman to reduce pollution in Delhi. This public statement supporting the scheme to restrict cars with odd-ending number plates to odd days and even to even ones made little sense and authoritative environment bodies noted that car rationing was not effective in curbing pollution after two experiments with the odd-even formula.
While Justice Thakur could not have been prescient about these studies, he should have at least known that cars made a minuscule percentage of the city’s vehicular traffic and, hence, the Delhi government’s move was not likely to bring down the level of pollutants substantially. Soon, other apex court judges joined him, sharing pictures of car pooling with their brother judges.
Considering the fact that a whole lot of people do not have a fixed office or schedule of work unlike judges, these pictures betrayed callousness towards the less privileged citizenry.
More recently, the court has taken a fancy to cricket, and has decided that it will direct how the game will be administered in India. It is dictating how the Board of Control for Cricket in India (BCCI) will be structured. Once more, the court is making the law where there already is one under which BCCI operates. One does not have to endorse the way the BCCI manages the game to note that the judicial preference is puzzlingly to focus on how cricket is run when millions of cases involving ordinary Indians languish in courts.
Earlier, the Bombay High Court had asked IPL to move the tournament’s matches to venues outside Maharashtra when one media organisation showed pitches being watered when some districts were suffering for lack of water in a drought. That this non-potable water could not have been used to slake the thirst of drought-hit Marathwada did not seem to count for much with the judges.
This encroachment has drawn fire from former Supreme Court judge and Chief Justice of Allahabad High Court Justice Markandey Katju, who has advised the BCCI to fight back. He said, “Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation as they are three distinct organs of the State…It is against the constitutional scheme for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be chaos.”
Legally too, it is skating on thin ice. The court’s stand on the BCCI may not be legally sound. If one were to believe Justice (Retd) Katju, “… the order dated 18.7.2016 are judgment and order per incuriam, as they have overlooked several earlier decisions of larger and coordinate Benches of the Supreme Court which were binding on it.” The Latin term in the statement translates to “lack of due regard to the law or the facts”. A judgement or decision when found to have been taken per incuriam is invalid.
Justice Katju says, “Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. vs. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.).”
The longer the list of judicial misinterventions one makes, the less funnier it gets. The highest court of the country ruled in May this year that the Maharashtra government must issue licences to dance bars in a matter of two days. In another case, it has asked Air India to clarify whether it could fly to Shimla. With half-baked knowledge of the rules of Sabarimala, the Supreme Court also sought to force women into the shrine in the name of ending gender discrimination. Beat the next one. When it is common knowledge that censorship of the Internet is impossible, the Supreme Court threatened Google, Yahoo and Microsoft for showing advertisements of sex selection kits. Agreed, female foeticide is a matter of grave concern. But how will the court enforce the law if the search engines decide to defy the judges? Ask the government to ban them in India, encroaching yet again on the territory of the executive?
The greatest loss this judicial activism has caused is that of the credibility of the only institution that the people of the country looked up to, until recently—with some hope of deliverance from “evil” politicians. The higher courts’ tendency to poke everybody everywhere has given rise to titters on twitter and facepalm moments on Facebook. @Babu-Bhaiyaa tweeted on Raksha Bandhan Day: “Supreme Court should also fix the maximum amount of money that a sister can demand from her brother after she ties the rakhi on his wrist.” An Anil Mattoo posted on Facebook: “MyLord just passed judgement: Radius of jalebi shouldn’t be more than 1.24 cms”, and was liked by hundreds and shared many times.
Nastier comments, about judges promoting their progeny, also surface, but we are not printing them for obvious reasons. However, what needs to be flagged is the fact that even ordinary citizens think the judiciary is out of line.
Lavish Lifestyle In The Face Of Backlog
While the CJI has made a scene—breaking down on one occasion at a function where Modi was in attendance—over a serious deficit of judges that, he claims is a major reason for delayed cases, it seems other judges prefer to waste time on trivial cases if they happen to catch the media’s fancy. In any case, justice delays are the result not only of many vacancies left unfilled, but also the excessive need for court vacations. The Supreme Court, which stopped listing pending cases in March 2015, had 61,300 cases pending in that month. But consider how many holidays the court has. Apart from 43 days of summer vacations, there are more than 40 other court holidays in 2016, not counting Saturdays and Sundays. This is far more than even most kindergarten schools.
And then you have splurging at the taxpayer’s expense. “Supreme Court spent Rs 38 lakh on Justice A.K. Sikri’s air tickets, Rs 37 lakh on CJI T.S. Thakur’s in 3 years” read a recent newspaper headline. Refer to The Economic Times of 17 June for more. Add to that the fact that four of the six judges who joined the apex court in the last two months are yet to declare their assets, livemint.com reports.
Just the normal cost to the exchequer incurred on a new judge is Rs 15 crore per annum on all his expenses including running his court and maintaining his lifestyle over and above his salary. And CJI Thakur is asking for 70,000 judges! That is about 10,000 more than the number of judges required if the country were to have 50 judges for every million of our population. India’s 16,438 judges in 9,930 subordinate courts, 621 judges in 24 High Courts and 29 judges in the Supreme Court must find out other ways to clear the backlog of 27-odd million cases.
CJI Thakur might well have not done his calculation properly. The rate of completion of cases is higher than that of filing of new cases. Between July 2014 and July 2015, for example, while 18,730,046 cases were cleared, 18,625,038 were filed.
Curiously, the courts are but averse to being told they should have more officers. Last month, the Madras High Court rapped Principal Secretary Apurva Varma for asking for compliance of Justice Shetty Commission recommendations on infrastructure, staff strength and pay details for judicial officers!
It would, however, be facile to conclude that the present set of judges has a political agenda against the current government. During UPA-1, in February 2008, then Lok Sabha Speaker Somnath Chatterjee— also a lawyer by profession— had warned the judiciary against encroaching upon the territory of law makers.
No less than a former CJI, the late Justice J.S. Verma, found it difficult to support the Supreme Court’s order on corruption in 2011. In an interview he had said: “When I read the order, I found the precedents cited to justify it was the Jain hawala case. I was a little amused. I don’t think that is a valid reason. How can a retired judge be assumed to be the most competent authority to investigate? Moreover, it raises uncomfortable questions. The presence of a judge in the investigation might make the accused think the case is already weighed against him. I would not call it legitimate judicial intervention and if someone said it was judicial activism, I wouldn’t be able to contradict it. I find it difficult to support such an order.”
Corruption Of Judges
Chatterjee was so worked up by the judges’ overreach that he did not mince words in remarking that 20 percent of the judges were corrupt. This is a point Justice Katju never tires of making. He said last year that 50 percent of higher judiciary was corrupt. In the same league is eminent lawyer and former Minister of Law in the Morarji Desai government, Shanti Bhushan. In 2010, he had famously said that eight of the last 16 chief justices India had had since 1990 were corrupt.
That the Supreme Court neither sent him to jail for these allegations, nor did anything to investigate the matter further, tells its own story about the seriousness of the top judiciary in fixing its own black sheep. The case of contempt of court is still running against him, with lawyer Harish Salve wanting him to apologise for the statement and Shanti Bhushan and his son Prashant Bhushan pleading helplessness for the fact that it’s difficult to get documentary evidence against judges as they are immune from investigation.
Transparency International’s paper “Global Corruption Report 2007—Corruption in Judicial Systems”, citing a countrywide survey on public perceptions and experiences of corruption in the lower judiciary conducted by the Centre for Media Studies in 2005, states that “bribes seem to be solicited as the price of getting things done. The estimated amount paid in bribes in a 12-month period is around Rs 2,630 crore. Money was paid to the officials in the following proportions: 61 percent to lawyers, 29 percent to court officials, five percent to judges; and five percent to middlemen.”
But even where nobody doubts that a certain judge is corrupt, impeaching him is a near impossible task in India. We have witnessed this in the motions against former Supreme Court judge V. Ramaswami accused of ostentatious expenditure at home, former Calcutta High Court judge Soumitra Sen accused of misappropriation of Rs 32 lakh as a court-appointed receiver and former Chief Justice of the Sikkim High Court P.D. Dinakaran charged with accusations of corruption and judicial misconduct.
In Ramaswami’s case, while nobody voted against the motion of impeachment supported by 196 Members of Parliament that day on 10 May 1993, all 205 Congress MPs abstained to save the maligned judge the final dishonour. His case also saw the surfacing of sectarian fault lines in our society. Several legislators from the southern states alleged it was a conspiracy hatched by North Indians against South Indians!
Dinakaran was either desperate or brazen or both. The motion for his impeachment had come up in Parliament in 2010. He expressed his lack of confidence in the three-member probe panel comprising Supreme Court Justice Aftab Alam, Karnataka High Court Chief Justice J.S. Khehar and senior advocate P.P. Rao. Then he accused Rao of bias. In a last bid attempt to salvage his honour, he also played the Dalit card. When nothing worked, he resigned from the court to spare himself the ultimate disgrace.
Sen resigned before he could be condemned with impeachment, too. That was in the year 2011. Dinakaran and Sen are enjoying all post-retirement benefits now.
In fact, there is a website called IndianCorruptJudges.com that claims it has a list of 867 judges who are “corrupt”. This and other shocking allegations against judges are displayed prominently in hyperlinked headlines on the sidebar of its homepage. If the charges are correct, who is proceeding against these judges? If they are false, why isn’t any legal action being taken against the website?
Eminent Lawyers Respond
Following the failure of Parliament to impeach Ramaswami, Shanti Bhushan and his son Prashant Bhushan had formed the NGO, Committee on Judicial Accountability, which demands that court formalities be simplified so much that the aggrieved may fight their cases on their own without needing the help of lawyers. In solidarity with RTI activist Subhash Chandra Agrawal, Bhushan Jr also demanded that Supreme Court and High Court judges be brought under the ambit of the Right to Information Act. A Constitution Bench will decide whether this wish can be granted. Reacting to this dilly-dallying tactic, Prashant Bhushan expressed dismay at the hypocrisy of judges who want election candidates to declare their assets but “shy away” from declaring their own.
Prashant Bhushan is against the clause in the Contempt of Court Act that prohibits media from reporting cases of alleged corruption by judges. Further, he wants an ordinary citizen to have the right to get an FIR registered against a judge he has complaints against—without needing the CJI’s permission for the purpose.
To be sure, not all senior lawyers seem to think the Supreme Court is over-reaching. Fali Nariman, who was one of the lawyers who took the NJAC to the Supreme Court for allegedly damaging judicial independence, has been on the side of judges in the tussle between the judiciary and the legislature-executive combine. Invoking the Ramayana, he says, “…the boundary line can be crossed and is crossed—but only, and always, for a good cause.” This “only” and this “always” are problematic. It elevates judges to the stature of God.
Nariman makes an even stranger case for the overstepping judges. He wrote in The Indian Express: “Whilst Lakshmana is away in search of Rama, Sita, out of compulsion of performing a religious duty for a guest (Ravana disguised as a poor Brahmin) crosses the line to give him food, following which she is abducted.” This is arguable, for Nariman is essentially saying that activist judges are struck by Sita-like naïveté, unaware of the motives of the public interest litigant. This was his reaction in May this year to Finance Minister and former lawyer Arun Jaitley’s act of taking exception to judicial activism.
Nariman should have instead spoken of overreach in exceptional circumstances. Do politicians sometimes ask for this undue intervention? Of course. The Ram Janmabhoomi-Babri Masjid dispute is a prime example. A matter of faith and communal sentiments of Hindus, Muslims and an akhada (group of monks) could have been settled politically. They passed the onus to the courts.
In response, the Allahabad High Court issued a verdict that none of the three applicants had asked for. However good a judgment is, granting what neither the plaintiff nor the defendant has demanded—trifurcation of the disputed site—defies normal jurisprudence. Since no party to the dispute has accepted the judgment, the option the Supreme Court is left with now is issuing a technical verdict. Then the faithful will say that the divine cannot be subjected to technicalities! Who is responsible for this impossible situation? Politicians who skirt their responsibility to settle tricky issues.
Former Attorney-General Soli Sorabjee is more realistic. He believes that, as and when overreach happens, the individual judge is to blame. “Overreach in some cases happens but not on the whole. In some cases, judges are swayed and it depends upon the mindsets of different Benches,” he says.
T.R. Andhyarujina— senior advocate of the Supreme Court, former solicitor general of India and former advocate-general of Maharashtra— is closer to the Swarajya line of argument. He agrees that the highest court of the country has engaged itself in issues that are at best trivial. “Jaitley’s pungent statement,” he says, “should revive the debate on the overreaching jurisdiction of the Supreme Court.”
Pungent or pleasant, Jaitley, from his position of authority in politics and society, has issued a much-needed caveat. India is a democracy, not a judicial oligarchy, “my lords” must be told.