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In a post-script to the Introduction of the reprint of the book, “The Judiciary and Governance in India”, which is being brought out by Rupa & Co, former home secretary MADHAV GODBOLE talks about recent developments and decisions of the Supreme Court which raise serious forebodings. Extract from the book

It has been a decade since I wrote the above introduction. This has been a significant decade which, for the first time, has given rise to serious forebodings about the role of the judiciary. This is particularly worrisome considering the unique position which the judiciary occupies in India’s national life.

Of the three organs of the state, the judiciary continues to be the most trusted, enjoying the highest public credibility. The Supreme Court has been the court of first, rather than the last, resort.  Since Parliament has become irrelevant for resolving any major issues, the Sup­reme Court had to step in even in matters such as electoral reforms.

In a politically fragmented polity, Constitutional bodies like the National Development Council and the Inter-State Council have become irrelevant and remained inactive. As a result, issues of centre-state relations have had to be agitated in the Supreme Court.

It is unbelievable but matters such as in-fighting in the CBI had to be taken to the Supreme Court, instead of being dealt with by the government administratively. Normally, a controversy such as the Rafael contract should have been debated in Par­lia­ment. If necessary, a parliamentary committee could have been appointed to look into allegations of irregularities and corruption. But since these instruments of democratic governance and accountability have become non-functional and have lost all credibility, the issue had to be raised in the Supreme Court. In no other country, the judiciary has been asked to take a hand in the governance of the country to this extent.

It is for this reason that some recent developments, stance and decisions of the Supreme Court raise serious concerns and forebodings.

The press conference held by the four senior-most judges of the Supreme Court on January 12, 2018 was most disconcerting and unsettling for common stake-holders. It was more shocking to see that the concerned judges did not see anything wrong in having taken the step. No one was surprised at the internal dissensions among the judges of the Supreme Court. This is not uncommon in any institution, particularly one in which there is so much talent and scholarship under one roof.

In his press conference after his retirement, Justice Kurian Joseph has dilated on a number of issues which led to the holding of the press conference. These included roster and the manner in which it was decided upon, even granting that the chief justice is the master of the roster; systems and practices which were considered necessary but were not being introduced; and the need to set up an administrative committee in the Supreme Court as in the High Courts. (IE, 1 December 2018, p. 10)

Though systemic issues and troubling practices have been there all along, it is for the first time that they were aired publicly in such a shocking manner. Why had the demand for a collective leadership become so important only now? By contrast, there were times when the Supreme Court exhibited exemplary unity and all judges offered to resign when the senior-most judge was proposed to be superseded in the appointment of the chief justice. The esprit de corps has been lost since a long time, with each judge acting for himself. This has permanently damaged the image and public esteem of the highest court of the country and it will take a long time before this unsavoury memory is erased from public mind.

Administrative decision-making in the Supreme Court has always been considered to be opaque by the stake-holders. For example, there are no “speaking orders” on why and for how long hearing in important cases is put off. The Ramjanmabhoomi-Babri Masjid matter is a case in point. There is reason to believe that if the decision in this long pending case had not been put off, the Babri Masjid could have been saved from demolition by mob violence in 1992. The sudden postponement of the hearing in this case from November 2018 to January 2019, and that too not for a substantive hearing but only for deciding procedural and other issues, has led to a dangerous and virulent politicisation of the issue. It will be counter-productive to trivialise the importance of this case by treating it as just a land dispute. It is of utmost satisfaction that even on such an emotive and politically explosive issue, both sides, Hindus and Muslims, have been patiently waiting for the decision of the apex court. It is in national interest that this respect for the judiciary is not permitted to be undermined, consciously or unconsciously.

The same thing can be said about several other important matters which have been pending for decades together. One such case pertains to reservation of 69 per cent granted in Tamil Nadu, which is way beyond the limit of 50 per cent laid down by the Supreme Court. This issue is of utmost national importance considering the agitation for reservations by dominant communities such as Jats and Patels in some states. The government of Maharashtra has recently given 16 per cent reservations to Marathas taking the total reservations in the state to 68 per cent, even without placing the report of the Backward Classes Commission before the state legislature. The state government is also likely to announce reservations for Muslims and the Dhangar community soon. Another important case pertains to review of the Supreme Court decision in the Hindutva case. The importance of this case needs no special emphasis in the current context of clamour for declaring India a Hindu Rashtra. The same thing is true of the case pertaining to constitutional validity of Article 35A of the J&K Constitution in which the hearing was postponed by the Supreme Court recently. The case of constitutional validity of the resettlement law of J&K has reportedly been pending for over three decades.

Some time ago, the then chief justice of India had talked about how difficult it was to spare judges for deciding constitutional issues. If this is so, should the Supreme Court not be split up and a separate apex court established only for deciding constitutional matters? After all, the issues involved therein are of national importance and keeping them pending for years together is not in the public interest. The Law Commission of India may be asked to examine the subject in depth and prepare a paper for national debate and discussion.

Judicial reforms have been talked about by every incoming and outgoing CJI in recent years. The number of pending cases at all levels continues to be as staggering as ever. Some judges of the Supreme Court and chief justices of high courts, on retirement, have talked eloquently on the subject. One of them is Justice Kurian Joseph (IE, December 9, 2018, p. 7). One of the past CJIs had even shed tears on the plight of court litigants. In spite of this acute awareness of the seriousness of the problem, there has been no perceptible change in the situation. I have discussed this matter at length in the book. On taking over charge, present CJI Ranjan Gogoi has assured that this subject will receive his close attention. Justice Kurian has stated in the “Idea Exchange” referred to above that “the present CJI is going to have regular dialogue with the head of nation”. This is reassuring. Let us hope the long-pending and complex issues pertaining to judicial reforms will be addressed in the dialogue.

Speaking at the second J. Dadachanji memorial debate in December 2018, K.K. Venugopal, attorney general of India, has invited attention to two important aspects of the working of the judiciary. He has rightly asserted that the Supreme Court has taken over more powers than any other apex court in any other country. Venugopal has also hoped that the concept of Constitutional morality newly invented by the Supreme Court dies soon. Both these concerns are valid and need to be debated nationally. I am particularly worried about the first concern. Such fears were also expressed by Jawaharlal Nehru who had asserted that the apex court should not be permitted to be the third chamber of Parliament. As I have brought out in the book, we have come a long way since then. And I have no quarrel with it as the judiciary has come to occupy the legislative space which had remained vacant for too long a period. Thus, for example, the subject of electoral reforms was being deliberately soft-pedalled by political parties and by whichever government came to power. Even after the Supreme Court decision directing introduction of some reforms, all political parties ganged up to oppose them.

Another case was of resistance to legislate a law for the Lokpal. Finally, it was because of Anna Hazare’s agitation and the mass upsurge that the UPA government relented, but the BJP government which came to power in 2014 has been reluctant to give effect to it. The people were left with no alternative but to request for the intervention of the Supreme Court. Enacting a separate law for the Central Bureau of Investigation (CBI) is another case where even the Supreme Court has been helpless. The question has been under discussion for over 50 years but has not impelled the government to enact a law. Dozens of such instances can be given to bring out why the activist role of the Supreme Court is inevitable in India. There is no alternative to the Supreme Court taking a hand in the governance of the country. India is destined to have a guided democracy, democracy guided by the Supreme Court.

But for the same reason, the judiciary has to be accountable and transparent. It cannot be a law unto itself. The selection of judges has to be above board. The process must be transparent and such that it evokes confidence about the fairness, integrity and judiciousness of the system.

Looked at from this point of view, the resistance of the Supreme Court to the setting up of a National Judicial Appointments Commission is totally unjustified. This law was passed unanimously by Parliament and still was declared unconstitutional by the Court. It is difficult to countenance the situation in which the selection of judges will not be open and transparent or that the collegium of judges will not be answerable to anyone. Justice V.R. Krishna Iyer, former judge of the Supreme Court, had minced no words when he called this an incestuous relationship. As for the Memorandum of Procedure concerning matters pertaining to the appointments, transfers, etc. of the judges of the higher judiciary too, there has not been agreement yet between the government of India and the Supreme Court. Here also, the Supreme Court is stone-walling the issue and is not prepared for any give and take with the government. Justice Kurian Joseph, who was a member of the collegium till his retirement, has in his interview to The Indian Express, said, “As far as the Memorandum of Procedure is concerned, the Supreme Court is of the view that it is final because it has approved it.” (IE, 1 December 2018, p. 10).

This stance of the Supreme Court would have been understandable if India did not have a written Constitution. But the Indian Constitution is an elaborate, bulky, well conceived and well drafted document. The Supreme Court has the authority to interpret it but it is questionable whether it has the powers to rewrite the Constitution as it has done by its decisions on the basic structure, appointments of judges and so on. As for the basic structure doctrine, I have argued in this book that it was invoked by the Supreme Court only due to the Constitution demolition brigade which was active under the then prime minister Indira Gandhi and its origin was in the “argument of fear”. However, due to the political situation in the country, over a period of time, the logic of basic structure has been accepted by all political parties. But matters pertaining to appointments of judges are not in the same category.

If the Supreme Court continues to take a unilateral position on the subject and refuses to accept any open, transparent system, there will be no other alternative than to convene a new Constituent Assembly to deliberate on the issues. To me, this will be opening a Pandora’s Box. The whole Constitution will then come up for review and with the fractious polity that we have now, one does not know what all compromises may have to be made to arrive at an acceptable new Constitution. Even the basic structure doctrine will come for reconsideration. A far as I can see, even the precept of secularism will be examined anew. The consequences may be horrendous and even unthinkable.

The time has come for even the Supreme Court, which is the world’s most powerful judicial institution, to realise that in a democracy, there are limits to each institution’s powers and authority. There is no getting away from checks and balances. Let us hope the Supreme Court will see the reason and step back from the precipice.

—The writer is former Home Secretary and Secretary, Justice, Government of India

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