Who threatens the court?

Modi's reference to the 'committed judiciary' takes us back to the 1970s, when Indira Gandhi's government twice superseded senior judges while appointing the CJI

There’s been a flurry of action around India’s higher judiciary. First, there is a letter collectively signed by 600 members of the bar, including Harish Salve. Addressed to the Chief Justice of India, the letter offers support and solidarity at a time when the court, the signatories say, is under an egregious assault from parties interested in undermining it.

This might have passed as some usual bar politics, particularly when in some states (notably West Bengal) bar council elections are also being fought on party symbols. But not once did Prime Minister Narendra Modi endorse it, either. He shared the text of the lawyers’ letter of support and solidarity for what they see as an endangered judiciary with an interesting comment — 50 years ago the Congress demanded a “committed judiciary”.

This takes us back to 1973 and then 1977, when Indira Gandhi’s government carried out two acts of significant superseding of the appointment of the Chief Justice of India. Each decision was politically motivated. In fact, each was directly linked to a significant order of the top court in that fraught decade.

The first, April 1973, was the superseding of the three senior-most judges: Jaishanker Manilal Shelat, A N Grover, and KS Hegde and the appointment of Ajit Nath Ray as the CJI over their heads. The three who were passed over resigned. The context was the Kesavananda Bharati judgment, in which a 13-judge Bench determined 7-6 that there was something called the basic structure of our Constitution. Ray was among the six who said “no”. The three passed over were among those who established the “basic structure” doctrine, and generations of Indians have to be grateful to them.

The second came in January 1977, not long before the Emergency was withdrawn. But Mrs Gandhi wasn’t going to let the most inconvenient judge for her go unpunished. H R Khanna was now passed over and M H Baig appointed CJI instead. Khanna resigned. He would have seen the writing on the wall after the 1973 episode. He was one of the seven who held the majority view in Kesavananda Bharati. More importantly, he was the lone dissenter in the odious Emergency-era habeas corpus case, known as the ADM Jabalpur case, where four of the five on the Bench accepted the government’s view on the curtailment of civil liberties. Khanna never became the CJI but emerged among the most iconic Indian judges ever — probably the most iconic.

The judges, Mrs Gandhi’s establishment believed, were not in tune with her socialist times as mandated by her voters. Her core group represented a deeply Sovietised hard Left. That’s why India needed judges who would better understand what she was doing to implement the popular will.

They should, in that sense, be “committed” to the “popular” approach to governance by an elected government. The late Mohan Kumaramangalam, a known Communist in her cabinet, is widely credited with having first floated the idea of a committed judiciary. One obsession of dictators is to have “perfect” institutions in the belief that only they are capable of creating and protecting these. Indira Gandhi tried making the judiciary one with her acts of superseding. This is the phenomenon from 1973 that the Prime Minister was referring to.

The question that would follow: Who is it that is trying to bully and browbeat the judiciary today? Surely, the tweet suggests it is the Congress. If that was indeed the case, it would be punching way above its weight. Like, say, about three times, if not four, given its 52 seats in the Lok Sabha.

There is no such thing as a perfect institution in a democracy. It follows, therefore, that the Indian judiciary too is far from perfect. Has it been getting more imperfect than usual lately?

That would depend on how you define “lately”. This, in turn, would also depend on where you are coming from, what your politics is.

If you were on the anti-Modi, anti-BJP side, for example, you might say the time the Supreme Court really lost its way was in the era of scam mania under UPA-2. Say, between 2010 and 2014.

This is when the Lordships were issuing orders, some purely verbal, more or less proclaiming all influential accused as convicts, taking direct supervision of “scams” like 2G spectrum in telecom. There was so much anger in the spoken word, that it taught so many of us, the innocent non-legal folk the expression obiter dicta.

For one not really so bothered by the politics of the day, and with all the biases of a cricket nut, I might think the Supreme Court really lost its away later when it waded into managing (am still scared of speaking the truth but, what the hell, eventually and inevitably mismanaging) Indian cricket with its “your daddy strongest” takeover of the Board of Control for Cricket in India. It did nothing for Indian cricket but enriched a legion of retired judges, civil servants, even one Army three-star for diversity.

If you are with the BJP, however, or if you are the BJP, when would you think that “lately” was? Reading this letter alongside the Prime Minister’s endorsement, it would seem that time is now.

Is it with the judgment on anonymous electoral bonds? That could be one trigger even though the information these bonds revealed isn’t one-sided. Everybody has benefited from these, and was complicit in the secrecy. This has, however, raised important points like the link between action and raids by “agencies” and/or regulators on companies and the timing of their payouts.

Read the lawyers’ letter carefully for some pointers to what might have provoked this rearguard because it coincides with the beginning of the election campaign, but an almighty one with full state support. The references to the court’s unnamed “enemies” making insinuations of Bench fixing, arguing in the court during the day and campaigning in news-TV debates later in the evening (to influence the judges), and criticism of individual judges and judgments are all to be read together.

There is a particularly interesting and intriguing line about lawyers criticising some politically but defending them in court. Can you fill in the blanks here? Check who the most prominent Opposition leader in court is these days and who his lawyer is. And have we seen certain political litigants withdrawing their cases from certain Benches, maybe in the hope of finding the odd judge changed in the course of time?

There is much that the letter gives us to mine deeper, think, and debate. On one thing there is no doubt: That this has the government’s fullest support. 

The judiciary, the thought is, is under perilous threats, and this section of the bar and the executive are united to “protect” it. It is finally for the Supreme Court to decide if it felt imperilled. And if so, is the threat from whatever these “non-state actors” is so serious it would need the executive’s support. That will be some turnaround from the scene 50 years ago when it was fighting Indira Gandhi’s executive.

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