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Modi sarkar vs judiciary again, this time over judges' elevation to SC

Saurav Datta | Updated on: 11 July 2016, 21:45 IST

In October last year, the Supreme Court strongly rebuffed the ruling dispensation's attempts to 'control' judicial appointments to the high courts and the Supreme Court, by striking down the National Judicial Appointments Commission Act as 'unconstitutional'.

That law, if approved, would have given the political executive a considerable degree of control over the appointment of judges to the Supreme Court and high courts.

The apex court, in a ruling which came in for criticism from a number of quarters, squarely refused to give the Executive the upper hand in appointing judges.

Now, a new skirmish seems to have cropped up, with the Supreme Court's 'collegium' (the Chief Justice of India and four seniormost judges of the apex court) rejecting the elevation of four high court judges to India's top court.

It is almost impossible to find out who these four are, and why their elevations were scuttled.

Bones of contention

The principal bone(s) of contention appear to be giving the government of the day a veto power over judicial appointments on grounds of 'national interest', and giving the Attorney General of India a say in choosing judges.

In this context, one must remember that the Attorney General , the government's top law officer, is always a political appointee.

Who should define and decide what is 'national interest', especially when now 'anti-national' has become a buzzword for nomenclature of dissenters against the present government and its policies?

The collegium and its warts

The collegium was created by a 1993 ruling of the apex court itself, although not provided for by the Constitution. It has always covered itself in a shroud of opacity.

It is neither required to, nor provides, any reasons for its decisions - whether affirmative or negative. And if one delves into the Indian judiciary's chequered history, one might stumble upon many instances of nepotism and corruption. No charges or accusations of material exchanges have been substantiated till date.

However, George H Gadbois, Jr's Judges of the Supreme Court of India, and Abhinav Chandrachud's The Informal Constitution: Unwritten Criteria In Selecting Judges For The Supreme Court Of India, could provide some insights into why the collegium system is mired in controversies.

A Latin phrase- 'quis custodiet ipsos custodes' (who will guard the guards?) is often used to describe this piquant situation, especially when the judiciary is supposed to be the sentinel of the Constitution.

Judicial skulduggery is the proverbial elephant in the room - no one, even renowned legal practitioners, is ever willing to mention it, especially because India's judiciary is too eager to wield the sword of criminal contempt like a swashbuckling sword. A conviction for the crime earns one a jail term.

The sheer irony of it all

This tussle between the judiciary and ruling power is starkly reminiscent of the tug-of-war between Indira Gandhi and the courts, because she and her cohorts wanted judges to be aligned to her ideology, and not necessarily towards the goals of justice.

Narendra Modi never minces any words to express his extreme hatred for the Gandhi family.

Indira Gandhi wanted a 'committed judiciary' - that is, pack the courts with judges wedded to the policies of the government of the day. And this 'court-packing' exercise - inspired by US President Franklin D Roosevelt, who sought to implement his New Deal policies (in the immediate aftermath of WWII), has gone down as one of the darkest episodes in India's judicial history.

But the root of the irony is here: In June 2014, shortly after Modi stormed into power, his government scuttled the elevation of Senior Advocate Gopal Subramanian to the Supreme Court. Subramanian's apparent fault was that he, as a Supreme Court-appointed amicus curiae (friend of the court) investigated the Sohrabuddin Sheikh fake encounter case, and pinned the blame on Modi's Gujarat administration. And that accusation has been hanging like an albatross round Modi's neck.

Little wonder, then, that he would be bent upon choosing judges after his own heart.

Edited by Shreyas Sharma

More in Catch

#NJAC : Let's turn the clock back to pre-collegium days

'Landmark' or 'unconstitutional': reading the SC verdict on NJAC Act

SC hears suggestions on collegium: what does it mean for the common man?

First published: 11 July 2016, 21:45 IST
 
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.

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