Law Minister Kiren Rijiju’s recent remark that India needs a judiciary which is committed to the nation but not to the Government is a variation of what his predecessors in the Congress had harped upon decades ago. The idea and substance of a “committed judiciary” in a democracy originated in the fledgling United States in the 1800s when its fourth chief justice John Marshall ensured the nascent U.S. Supreme Court delivered a unanimous judgment instead of individual verdicts.
Mr Rijiju’s euphemistic circumlocution emerges when we accept that the Government represents the nation, so that we cannot divorce one from the other. Just as Parliament represents the will of the people, at least theoretically, so does the Government.
Mr Rijiju’s predecessor, Ravi Shankar Prasad, who was a senior advocate of the Supreme Court, remarked sarcastically that an independent judiciary does not mean it can legislate, usurping the function of Parliament. Vice President Jagdeep Dhankar, who, like Mr Prasad, was also a senior advocate in the Supreme Court, reiterated what was said earlier.
History has repeated itself with this concept of a “committed judiciary” resurfacing after Indira Gandhi superseded Supreme Court judges J.M. Shelat, K.S. Hegde and A.N. Grover with A.N. Ray, a minion whom H.R. Gokhale, S.S. Ray and Mohan Kumaramangalam lobbied for as the CJI in 1973. It is rumoured that after he took over as the CJI, he often phoned Indira Gandhi to ask her advice on certain judgments which were to be delivered.
An astute politician, Prime Minister Narendra Modi has never passed over any judge for the post of CJI but his law ministers like Ravi Shankar Prasad and Kiren Rijiju with Vice President Dhankar keep reminding the judiciary not to cross the Laxman Rekha which they have drawn.
Leaving that aside, a news report in The Times of India has alleged that the 49th CJI, Uday Umesh Lalit, who retired on November 8, continued to have 28 peons among his support staff while he created a dubious record during his tenure since 40 support staff worked at his official residence in New Delhi.
His immediate predecessor, the 48th CJI N.V. Ramana, was implicated in unsavoury controversies as he was accused of phoning his parent Andhra High Court to allot sensitive cases against the Y.S. Jagan Mohan Reddy to select benches, with predetermined results — the same accusation which the 45th CJI Dipak Misra faced. The 46th CJI Ranjan Gogoi was accused of sexual harassment before he presided over the bench to deny these charges in the woman’s absence — a blatant flouting of natural justice.
The 47th CJI Sharad Arvind Bobde did not make a single recommendation of any judge for elevation to the Supreme Court. He was photographed sitting on a stationary Harley Davidson without a helmet, and also allegedly asked in open court if a rapist would marry his victim. A former Supreme Court judge, Markandey Katju, alleged in 2021 how three former CJIs — Justices R C Lahoti, Y K Sabharwal and K G Balakrishnan — made “improper compromises” to allow a corrupt judge to continue in office despite an “adverse” Intelligence Bureau report against him. The ruling party in Tamil Nadu threatened to topple the coalition Congress Government unless the corrupt judge was allowed to continue in office.
These few examples buttress Kiren Rijiju’s assertion that the government must have a say in who should become a judge, but also demolish the argument for a “committed judiciary”. This is because a committed judiciary is antithetical to a democracy. An independent judiciary forms part of the “basic structure doctrine” enunciated in the Keshavananda Bharati case which is why the judges struck down the National Judicial Commissions Act, 2015 which arose from the 99th amendment to the Constitution.
This judgment has often been questioned by Mr Dhankar and Mr Rijiju who said the people’s mandate exercised through Parliament could not be overturned by the judiciary. The reasoning given is the judiciary is selected in secrecy but not elected. With the greatest of respect to them, these dignitaries are wrong because the judiciary derives its existence from Articles 124 and 217 of the Constitution.
If we take a cursory look at other countries, the President of the U.S appoints Supreme Court judges for life subject to confirmation by the Senate while the state governors appoint state judges based on recommendations by a merit commission. The U.K. too has set up a commission to appoint its judges. In Iraq, sitting judges interview incumbents who have to first pass written and oral tests conducted by a judicial academy while in Japan, a Supreme Court secretariat appoints subordinate judges, trains and promotes them.
In Germany, their Parliament appoints judges to the Constitutional courts with a supermajority vote of 2/3rd which leads to a partisan judiciary. Obviously, we need to incorporate the best from all these systems without replicating them. When the Supreme Court itself admitted the Government was not cooperating with it by citing “national security” in the Pegasus spying scandal, the extent of judicial independence was revealed.
Will “national security” be used to thwart judicial intervention to supervise a probe into Russian meat magnate Pavel Antov’s mysterious death in Orissa this week? On December 24, Mr Antov’s body was found in a pool of blood, supposedly fallen out of a third-floor window. What arouses suspicions is that he was a vocal critic of Russian President Vladimir Putin for invading Ukraine. A few days earlier, his friend’s body was found in the same hotel surrounded by liquor bottles.
With both these bodies cremated, there is no chance to prove they were murdered, and the Government will not antagonise an old friend like Russia despite clear indications of foul play. The Indian judiciary dare not cross the Laxman Rekha if it supervises a CBI probe to ascertain who killed these critics of Vladimir Putin. However, unless a PIL is filed in the Supreme Court or in the Orissa High Court, the judiciary cannot intervene. This is because a “committed judiciary” will never embarrass its own country — meaning the Government.
The Constitution is what the judiciary says it is and a “committed judiciary” will interpret it the way the Government wants it to be interpreted.
Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court
