Opinion: Politicising the judiciary - a disturbing trend

New Delhi, Delhi, India Apr 30, 2018, 11.13 AM(IST) Written By: Siddharth Jain

File photo of Supreme Court of India. Photograph:( Reuters )

The recent rejection of the impeachment motion against Chief Justice of India (CJI), which was a misadventure at the behest of Congress in conjunction with other opposition parties, did bring back the unsavoury flavour of 1970s and rekindled the debate of the political class trying to tame the judiciary for its own vested interests.

In the hindsight, it was in 1973, when the then Prime Minister Indira Gandhi appointed Justice A N Ray as CJI while superseding three senior-most judges of the Supreme Court. This appointment was against all established traditions of the Supreme Court. It caused widespread opposition and compelled the superseded judges to resign but to no avail. Again, in 1977, it was Justice M H Beg who was appointed as the CJI instead of one of the most illustrious judges of India, Justice H R Khanna. Letting his actions resonate with his conscience, Justice Khanna also resigned on the same day. A deeper analysis of these two incidents brings to the fore a disturbing revelation. As per the records, while Justice Ray and Justice Beg were rewarded for their pro-government stance, Justice Khanna paid the price for upholding the majesty of law against the interests of the government. In the case of ADM, Jabalpur vs Shiv Kant Shukla, popularly known as the Habeas Corpus Case, Justice Khanna was the only judge who gave the judgment against the government while Justice Beg, who was a part of the same bench, ruled in favour.

And now, the impeachment motion against the CJI reveals the undying desire of the executive to have a committed judiciary and it is willing to resort to every move, whether justified or not. The details which are available in the public domain make it abundantly clear that it was nothing more than a malicious step taken for the vested interests and exert undue pressure on the judiciary. The impeachment proceedings against a constitutional functionary, holding an office as high as the CJI, ought to be supported by sound facts and rationale and cannot be a mere roving inquiry into the conduct.

Not only the opposition, even the government of the day cannot escape the blame. While it is criticising the impeachment motion wholeheartedly, its own disregard of the judiciary is noticeable. The latest in the series of various clashes between the judiciary and executive is the issue of elevation of Justice K M Joseph, who is currently the Chief Justice of Uttarakhand, to the Supreme Court. The Centre has raised various objections to the elevation. While these may, prima facie, not seem to be worthy of a doubt, at the root of it, however, is the fact that it was Justice K M Joseph who set aside President's Rule in Uttarakhand. Similarly, in 2014, similar circumstances prevailed when Gopal Subramaniam's name was recommended for elevation to the Supreme Court. Although Subramniam himself withdrew his candidature to save himself that unfounded humiliation, it would not go unnoticed that it was him who, acting as amicus curiae in the Sohrabuddin encounter case, convinced the Supreme Court to order CBI probe in the case.

Seniority is not a precondition for appointment or elevation in almost all the jurisdictions in the world. Even in India, the then Chief Justice of Bombay High Court, Justice M C Chagla, was recommended to be directly appointed as the Chief Justice of India. It is only resorted to as a practice by the apex court but the way it is being misused by the executive makes its political motives abundantly clear. We have to realise that, while everyone has a right to disagree with the judicial verdicts - and we do see healthy criticisms of the same on a regular basis - the courts are the final interpreter of the laws and we, as citizens, are bound to accept them gracefully.

Ironically, when the President of Maldives tried to gag the judiciary, India urged the Maldivian government to abide by the apex court verdict, whereas, back home, our government is trying the same, albeit in a 'democratic' manner.

With due regards, this state of affairs has, in part, to do with judiciary refraining from coming down hard on the political class. As has been observed by various legal stalwarts, it is high time that the judiciary starts invoking the contempt provisions against such malicious actions, irrespective of the position and stature of the individual. It is only then that we can hope to reinstate the majesty of courts.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Siddharth Jain

Siddharth Jain is a lawyer and co-founding partner of PSL, Advocates and Solicitors. He specialises in Civil Trials, Competition Law, Special Leave Petitions.