In recent rulings, the Supreme Court has reaffirmed its role as a vigilant guardian of the Constitution, providing assurance to citizens. However, despite these strong judgments, significant challenges persist on the legal horizon.
On March 5, 2024, Justice Abhijit Gangopadhyaya, who served on the Calcutta High Court from 2018, tendered his resignation. He revealed his decision to join the BJP, stating that he had been in communication with the party for a period of time. This revelation sparked concerns about the extent to which he adhered to his constitutional duty of impartiality. Particularly, questions arose regarding his fairness and impartiality, especially concerning cases involving the TMC.
It appears that Justice Abhijit Gangopadhyaya’s conduct raised further concerns. In April 2023, he granted an interview to a Bengali news channel regarding a case still under his adjudication. This action prompted Chief Justice of India (CJI), D Y Chandrachud, to issue a reprimand, emphasising that judges should refrain from granting interviews on pending matters.
The intertwining of politics and the judiciary has a historical precedent. Justice V R Krishna Iyer transitioned from active politics to becoming a Supreme Court judge. Similarly, K S Hegde, initially a Congress Rajya Sabha member, resigned to join the Mysore High Court bench. He later ascended to the Supreme Court and then returned to politics, ultimately becoming the Speaker of the Lok Sabha in 1977. Additionally, Chief Justice of India K Subba Rao resigned from the judiciary to pursue the position of the Opposition candidate in the presidential elections of 1967.
In every democracy, the presence of an independent judiciary is crucial. However, governments, being significant litigants, often desire a judiciary that aligns more closely with their interests. During the 1970s, Indira Gandhi notably advocated for a “committed judiciary” that would support the agenda of the ruling party. In pursuit of this objective, she boldly bypassed judges who posed challenges and instead rewarded those who were compliant with the party’s directives.
In 1981, the Supreme Court significantly restricted the powers of the executive branch. It decreed that the appointment of judges should involve consultation with the Chief Justice of India (CJI). Subsequently, in 1993, the Court went even further, interpreting “consultation” to mean “concurrence,” thus making the approval of the CJI indispensable.
By 1998, the Supreme Court established a “collegium” system, comprising the CJI and the four most senior judges of the Supreme Court, to oversee judicial appointments. However, in 2014, the government introduced the National Judicial Appointments Commission (NJAC) Act, which aimed to expand the executive’s role in appointments. Nevertheless, this move was deemed unconstitutional by a five-judge Supreme Court bench in 2015, as it was viewed as a threat to judicial independence.
The government has a strategic maneuver under the current system of judicial appointments. While the Supreme Court collegium proposes names for judges’ appointments and transfers, the government holds the authority to return these names. However, if the collegium reiterates any of the names, the government is obligated to comply. Unfortunately, there’s no specified time frame for the government to respond, leading to potential indefinite delays in implementing the collegium’s recommendations.
This issue came to a head in March 2021 when the Supreme Court highlighted that numerous recommendations, even those reiterated, were languishing with the government for extended periods ranging from six to eighteen months. Despite this warning, the government’s approach remains unchanged.
Consequently, many recommendations of the collegium lapse or become irrelevant due to the absence of timely government action. This situation exacerbates the problem of widespread vacancies in the High Courts, a critical concern in a country grappling with a staggering backlog of cases. Additionally, it contributes to the alarming statistic that over 70 per cent of those in jail are under-trials awaiting their day in court.
At the heart of this back-and-forth struggle lies the paramount importance of safeguarding judicial independence, which serves as the final defence for citizens against authoritarian regimes. Preserving this independence hinges on ensuring that judges remain free from government influence. To achieve this, it is imperative to establish a cooling-off period of at least two years for retired Supreme Court or High Court judges before they can take up any government assignments.
Regrettably, there is currently no provision in place to enforce a cooling-off period for retired judges. Over the years, numerous instances have occurred where retired judges have seamlessly transitioned into government roles or prestigious appointments. Justice Fazl Ali’s appointment as Governor of Orissa after retirement in 1953 and M C Chagla’s assignment as Ambassador to America while still serving as a Mumbai High Court judge in 1958 are notable examples. Furthermore, in September 2014, retired Chief Justice of India P. Sathasivam became the Governor of Kerala, marking a significant departure from tradition. In 2020, Chief Justice of India Ranjan Gogoi, known for delivering the Ayodhya judgment, was nominated to the Rajya Sabha post-retirement.
Additionally, retired Supreme Court judges are often lured into roles in various tribunals. Notably, Chief Justice Mohammed Hidayatullah (1968-70) and Supreme Court Judge H R Khanna exemplify exceptions to this trend. Hidayatullah resisted government temptations and stood firm on principles, notably opposing the cancellation of privy purses during his tenure. Similarly, Khanna remained steadfast during the Emergency (1975-77), offering a dissenting opinion in the face of government pressure regarding arbitrary arrests. His stance emphasized the paramount importance of upholding the rule of law even in the most challenging circumstances.
Critics of the collegium system rightly point out its inherent flaws, particularly its lack of transparency and accountability. Unlike many other countries where judicial appointments involve checks and balances, India stands out as the only nation where judges appoint judges. For instance, in the UK, a Judicial Appointments Committee comprising both judges and members chosen through open competition ensures a fair and transparent process. Similarly, in the US, judges are appointed by the President but subject to the advice and consent of the Senate, adding a layer of oversight. However, despite these differences, India lacks a mandatory retirement age for judges, a measure intended to shield them from potential government influence.
Although the current collegium system may require adjustments to enhance transparency, it remains far superior to a judiciary subject to executive control. The absence of an independent judiciary would inevitably evoke the haunting words of poet Ameer Qasalbash, where ordinary citizens find themselves at the mercy of a system where the accuser, the witness, and the judge are one and the same. It underscores the vital role of an independent judiciary in upholding justice and ensuring that individuals are not unfairly subjected to biased judgments.
