It was unwise for a Chief Justice of India, whose controversial tenure
strengthened the perception that the Judiciary could not take on the Government
on crucial issues, to have accepted the offer of a Rajya Sabha seat.
Dr. B. R. Ambedkar cautioned that the working of a Constitution does not depend
on the document itself. Ultimately, its effect depends on those tasked with
implementing it, …however good a Constitution may be, it is sure to turn out
bad because those who are called to work it, happen to be a bad lot. However bad
a Constitution may be, it may turn out to be good if those who are called to
work it, happen to be a good lot.
The great Constitution of India was in good hands, fortunately, and well
protected by the great institution – Indian Judiciary. The fundamental rights as
envisaged in Part III of the Constitution of India could be realized because of
the Supreme Court of India. It is this institution that protected the character
of Constitution of India from being tampered by majoritarian democratic
dictators, by discovering basic structure immunity. Great Judges like Justice H.
R. Khanna sacrificed the top position of Chief Justice of India, to uphold the
right to life from being decimated in emergency, that allowed the citizens to
survive in authoritarian regimes. The Constitution of India protected us because
of the shield and sword of the Supreme Court.
Dr. B. R. Ambedkar was worried and said: It is not that India was never an
independent country. The point is that she once lost the independence she had.
Will she lose it a second time? It is this thought which makes me most anxious
for the future. What perturbs me greatly is the fact that not only India has
once before lost her independence, but she lost it by the infidelity and
treachery of some of her own people...
The 'Independence of Judiciary' is not to be determined in all its ramifications
as some apriority concept but it has to be determined within the framework of
the Constitution of India. The thrust is to ensure that adjudication is
untrammelled by external or controls and Independence of Judiciary under
the Constitution of India is confined to the adjudicatory functions of the
Courts or Tribunals and they are insulated from executives control in that
behalf. A notable feature of the Constitution of India is that it accords a
dignified and crucial position to the Judiciary in India. The existence of a
fearless and Independence of Judiciary is thus founded in the
constitutional structure in India. Independence of Judiciary is not
genuflexion; nor is it opposition to every proposition of Government.
Present day anxiety is will India lose its Independence of Judiciary?
One or two aberrations or infidelity should not shake the foundations of
Indian constitutional democracy that was protected by Judiciary. The cause of
concern is, ever since the news of nomination of former Chief Justice of India
Ranjan Gogoi to Rajya Sabha was flashed, there is an unprecedented surge in
criticism, doubtful inferences and uncontrolled bashing of the system in print,
electronic and social media and the judicial actions of former Chief Justice of
India are brought into centre stage of this storm of adverse.
This is not the first time that a former Chief Justice of India is becoming a
member of Rajya Sabha, as Justice Ranganath Mishra was elected to the Upper
House on Congress ticket in 1998 [Seven years after his retirement]. Justice
Baharul Islam had resigned as a Supreme Court Judge in 1983 to contest elections
to Rajya Sabha on Congress ticket, and became an Rajya Sabha member that year
But the Centre nominating a former Chief Justice of India as an Rajya Sabha
member under Article 80 (3) of the Constitution of India, soon after his
retirement, is unprecedented. The nomination gives it the colour of a political
appointment and, therefore, casts a shadow of doubt on the credibility of the
Judgments delivered under his leadership as Chief Justice of India and creates
great consternation among informed citizens of India.
Most important in this context is to safeguard the people's faith in the
Judiciary. For one incident of ethical controversy, the confidence of the
people, that was built brick by brick over decades should not be allowed to be
shaken. The dark shadow cast on the high reputation of the Judiciary and on
recent Judgments should be cleared as soon as possible by all legal means
available to re-erect the edifice of faith of the society in the Institution.
Because this is the only recourse for poor victims of executive arbitrary
actions and draconian pieces of law rolled out from majorities in legislature.
If morale of justices is diluted or polluted, perhaps there will be no hope for
the constitutional governance according to rule of law. As Martin Luther King
Jr. said, injustice anywhere is a threat to justice everywhere.
The pitfalls of immediate post-retirement appointments given to Judges are
easily conceivable and widely discussed. Former Union Minister and Senior
Advocate Arun Jaitley once bluntly stated that pre-retirement judgments are
influenced by a desire for a post-retirement job.
My suggestion is that for two years after retirement, there should be a gap
(before the appointment), because otherwise, the government can directly or
indirectly influence the courts and the dream to have an independent, impartial
and fair judiciary in the country would never actualise, Jaitley had said in the
capacity of Leader of Opposition of Rajya Sabha in 2012.
In J. R. Parashar Vs Prashant Bhushan, (2001) 6 SCC 735. Para 12, the
Supreme Court held that the civil society is founded in the respect for the law.
If everyone chooses to break the law, no civil society can exist at all. The
Governments at Centre, during the rule by Congress and BJP have undermined
respect of the Judiciary by such acts of luring the Judges in Office with post
retirement positions in return to the favourable orders.
This question arises in the context of the Independence of the Judiciary which
has been tested over the last couple of years as never before, except during the
Emergency. There has been debate and discussion with regard to administrative
matters such as listing of cases and other serious issues such as the
appointment and transfer of Judges. By and large, the Supreme Court has left
quite a few wondering what’s going on and quite a few making comments that are
critical, bordering on the attribution of suspicion and accusations of bowing
down to the wishes of those not necessarily supportive of an independent
1. Sealed Cover Non-Jurisprudence
We have seen three developments during this period, with each one of them
requiring a rethink and each one giving rise to that suspicion.
First, the emergence of what is now called sealed cover jurisprudence. In
Supreme Court some papers in a sealed cover, are handed over, the contents of
which are not to be disclosed to anybody except the Judges. This is recognised
by the Indian Evidence Act but it requires a procedure to be followed – an
affidavit to be filed by the Head of the concerned Department claiming
privilege. But, on a perusal of the documents, the claim of privilege can be
upheld or overruled by the Court.
Theoretically (and only theoretically – since no one has seen these documents) a
claim for privilege could have been upheld on the Rafale documents
and could have been rejected on the detention report of children in Kashmir.
Unfortunately, Judiciary has adopted an unacceptable practice of complete
non-disclosure and the provisions of the Evidence Act have gone with the wind.
On no occasion has the sealed cover procedure been adopted with a supporting
affidavit claiming privilege.
Sure, the Courts have called for documents in the past and have not disclosed
the contents, as for example investigation reports. But this has been only to
ensure that the investigation is proceeding in the right direction and is not
influenced by extraneous factors or considerations. But on no occasion has the
decision of the Court been based on undisclosed documents. This has happened
now, and is objectionable.
For example, the final Juvenile Justice Committee report on the detention of
children in Kashmir were not disclosed to the Petitioners or their lawyers and
the petition was disposed of by the Court on their perusal. The right to know
and the right to information are now passé – secrecy is the name of the game in
which the State has been given the upper hand by the Courts.
The secrecy has extended to important administrative issues as well. The
report of an inquiry in a sexual harassment allegations against a former Chief
Justice of India is in a sealed cover and the contents of the report have not
even been disclosed to the complainant.
- Should she not even know what the report says?
A follow up report by a retired Judge of the Supreme Court on an alleged
conspiracy has also been kept in a sealed cover and we will never know if
there a conspiracy or not.
- Why is there so much secrecy in this?
- Is the Supreme Court trying to hide something unpalatable?
Maybe. The complainant was dismissed before the inquiry but reinstated with
full back wages after the inquiry. This makes sense only if there was some truth
in her allegations of sexual harassment.
On the conspiracy question, if there was a conspiracy.
- why is the Court not acting against the conspirators?
- On the other hand, if there is no conspiracy, is there any harm in
disclosing the conclusion and the reasons for the conclusion?
- How about taking action against the person who alleged a conspiracy in
so serious a matter?
The entire episode starting from the Saturday hearing presided over by
the accused person himself now seems to be a charade. Perhaps one day, Deep
Throat will tell us the truth.
While the Supreme Court keeps documents and information in a sealed cover close
to its chest and bases its decision on it (as in the case of children detained
in Kashmir) it has disapproved the High Court for following suit. Information
contained in a sealed cover was used by the Delhi High Court to keep a former
Cabinet Minister Dr. Farooq Abduallah and present Member of Parliament.
The Supreme Court said:
“...in present circumstance we were not very much inclined to open the sealed
cover although the materials in sealed cover was received from the respondent.
However, since the Learned Single Judge of the High Court had perused the
documents in sealed cover and arrived at certain conclusion and since that order
is under challenge, it had become imperative for us to also open the sealed
cover and peruse the contents so as to satisfy ourselves to that extent. On
perusal we have taken note that....
Except for recording the same, we do not wish to advert to the documents any
further since ultimately, these are allegations which would have to be
established in the trial wherein the accused/co-accused would have the
opportunity of putting forth their case, if any, and an ultimate conclusion
would be reached. Hence in our opinion, the finding recorded by the Learned
Judge of the High Court based on the material in sealed cover is not justified.”
The Ayodhya Judgment is a watershed for a different kind of secrecy. Perhaps for
the first time, the specific author (s) of a Judgment has not been disclosed.
This is truly amazing. Of course, the Judgment was unanimous, but then, why was
there an addendum? Who authored the addendum? Only five people know the truth –
the same number of people apocryphally believed to know the secret formula of
A trend has been set and we have to wait and watch how far it goes.
2. Prioritising Hearings
The Supreme Court also set an avoidable precedent in the hearing and
prioritising of cases, particularly Public Interest Litigations.
The twin requirements that a Public Interest Litigation that a litigant must
cross are: (i) show that he/she is a bona fide Public Interest Litigation
Petitioner and (ii) the cause is being canvassed in Public Interest. It is for
the Court to take a decision on these threshold requirements. If the threshold
is crossed on both counts, the Court takes over the conduct of the case till its
logical end – no conditions can, should, or are attached. Of course, if the
Court finds that even one of the requirements is not met, it will dismiss the
The Public Interest Litigation Petitioner usually assists the Court, but even if
he/she does not or creates a hurdle, the Public Interest Litigation Petitioner
can be replaced. This is precisely what transpired in a Public Interest
Litigation filed by Sheela Barse, who did not want to assist the Court after a
particular stage, but petitioned for permission to withdraw her PIL. The Court
did not grant her prayer, but substituted her with a Legal Aid Body. Similarly
and more recently, Harsh Mander was replaced by an amicus curiae when the Court
disallowed him from canvassing the cause of detenus in the detention centres in
Assam, a cause in Public Interest. In other words, the Public Interest cause is
more important than the Petitioner.
Contrast this with the view expressed by the Supreme Court in a Public Interest
Litigation pertaining to police atrocities against students protesting against
the Citizenship (Amendment) Act. The Court 'declined' to hear till the violence
What was the basis on which the Court concluded that the Petitioners or the
victims of police atrocities were responsible for the violence, or that they
were powerful enough to stop it?
Is it not possible to assume, conversely, that the violence would have been
halted, by whoever was unleashing it, if the State had issued a statement that
it will not implement the law for a few months? Perhaps that possibility was not
considered and instead the citizens were put on the mat. Assuming the Public
Interest Petitioners were guilty of the violence, they could have been
immediately substituted, following past precedent, by an amicus curiae and the
hearing in the Petition – that was clearly filed in Public Interest – could have
Placing pre-conditions on hearing matters involving Public Interest is clearly
inappropriate, particularly since most of such cases relate to issues concerning
the depressed, underprivileged or disadvantaged sections of society. Again, the
cause and not the person is important.
The absence of any urgency shown by the Courts in hearing cases concerning human
rights has emboldened the executive, who now know that when such issues are
raised, they can take it easy and even keep a person in custody on trumped up
charges at least for a couple of days, if not longer. A few days in custody, is
enough to shake up an innocent person. And so, cases of non-existent sedition
are filed for keeping persons in detention till he or she learns the lesson that
it is better to keep shut.
The sedition case filed against a teacher and the mother of an 11 year old
girl for staging a play in Karnataka is a classic example of high-handedness in
restricting personal liberty and getting away with it. A report published in the
Hindustan Times in February notes that a total of 156 cases of sedition were
filed between 2016 and 2018. Between December 11, 2019 and mid-February this
year, at least 194 sedition cases have been filed – with many ‘accused’ perhaps
not being granted bail. Such cases instil fear, and the Courts being sentinels
on the qui vive must give confidence to the people that they are always
available to protect their right to freely express their view, even if it is
3. Appointment of Judges
The third unfortunate development is the successful flexing of muscles by the
Government in matters of transfer of Judges and their appointment.
The 'transfer' of Justice Akil Kureshi from Madhya Pradesh, where he was
recommended, for appointment as Chief Justice to Tripura is well known, though
the reasons are not. Similarly, the 'transfer' of Justice Vikram Nath from
Andhra Pradesh, where, he was recommended for appointment as Chief Justice, to
Gujarat is equally inexplicable.
Much has been written about the almost midnight transfer of Justice S.
Muralidhar from the Delhi High Court to Punjab & Haryana High Court. Despite
what anybody may say, it was anything but routine – nobody gets transferred at
an unearthly hour and also without any ‘joining time’, least of all a
constitutional authority. The SC has maintained a studied silence at this
treatment, which by the way, has recently been repeated, making it perhaps a new
The appointment of Judges has been an equally tragic story. Recommendations are
being processed at a snail’s pace- no urgency, despite huge arrears. At last
count, more than 200 recommendations were pending at various stages and levels.
Worse, some recommendations approved by the Supreme Court Collegium have been
returned for reconsideration by the Government without adequate reason. Some of
these recommendations have been reiterated by the Collegium, but no warrant of
appointment has yet been issued – the fate of these potential Judges hangs on a
weighted balance. To make matters worse, there is at least one recommendation
that has been twice reiterated, but not yet acted upon – with the Courts doing
nothing about it.
So, Chief Justice recommendees have been at the receiving end as well as Judges
and potential Judges. Judges recommended for appointment to the Supreme Court
have been at the receiving end, with a long wait for appointment. Two well-known
instances are of Justice K. M. Joseph and Justice Indu Malhotra. Where will this
These and similar instances have led to the feeling among many that over the
last couple of years, the Court has been executivised. This is a polite
suggestion that the Independence of the Judiciary is in danger, through
self-inflicted wounds and some inflicted by the executive. And now suddenly
comes the news that a recently retired Chief Justice of India having
been nominated to the Rajya Sabha by the President of India on the aid and
advice of the Council of Ministers.
- How does the acceptance of the nomination impact on the Independence of
- What is the message sent out, keeping in mind the events of the last
From Supreme Court to Rajya Sabha
For a Chief Justice of India, whose tenure was marred by and mired in
controversies of all three categories mentioned above and whose tenure
strengthened the perception (beginning with the tenure of his predecessor) that
the Judiciary could not take on the Government on crucial issues, it was unwise
to have accepted the offer. It is well known that the Judiciary is the weakest
of the three pillars of democracy for it neither has influence over the sword or
the purse. How then does it have its decisions and directions enforced – both
judicial as well as administrative? If the Judiciary commands moral authority,
and has the trust and confidence of the people, then the power and strength
generated by that perception is enough to pressure the executive to obey the
orders and directions of the Court.
By accepting an offer not commensurate with the dignity of the Office held a few
months earlier, the former Chief Justice of India has led many to believe that
he has been rewarded by the Government, the biggest litigant, for doing their
bidding when it mattered. This may or may not be true, but that is the
It may also not be a quid pro quo (as some would have it) or a favour for favour
for some decisions (not necessarily Judgments). It could well be for staving off
embarrassment in an administrative or judicial issue or playing ball through
silence or failure to put one’s foot down on an administrative issue or
appointment or transfer of a Judge (s) – who knows? His acceptance of the
nomination, and the criticism this has naturally generated, has considerably
diminished the moral stature of the Judiciary and thereby collaterally impacted
on its Independence of Judiciary. Public perception is important and it has been
rendered totally irrelevant, thereby taking away one of the strengths of the
Whataboutery does not redeem the situation. No one has publicly applauded
the earlier election to the Rajya Sabha of Justice Ranganath Misra or Justice
Baharul Islam or the appointment of Justice Sathasivam as the Governor of Kerala
in 2014. How then can anyone make use of these precedents to justify the
nomination of the recently retired Chief Justice of India to the Rajya Sabha? If
the precedents were wrong, the present nomination is wrong; if the precedents
are acceptable, there is nothing to be disillusioned with the present nomination
– and the Independence of the Judiciary be damned.
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected]