It should have been apparent to any impartial observer that the apex court is distracting itself with issues that are not in its domain, while ignoring areas that are squarely its responsibility.
In recent weeks, the Supreme Court has done practically nothing to support its brother judge, the Chief Justice of the Madras High Court, who is being consistently pressured by unruly gangs of lawyers to appoint judges from particular communities. Among other things, lawyers have been shouting slogans against Chief Justice Sanjay Kishan Kaul and threatening to boycott court proceedings. Elsewhere in Chennai city, gangs of lawyers attached to the Chief Metropolitan Magistrate’s court have apparently been running a criminal enterprise of extortion from clients using their privileged access to the court (read here).
Supreme Court of India.
On the other hand, the Supreme Court has been busy trying to involve itself in areas that are purely in the executive’s domain. It is not the Supreme Court’s job to decide how black money should be eliminated. But it is doing just that by setting up a Special Investigation Team (SIT). It is not the court’s job to pressure the government on how it is cleaning up the Ganga. But it is doing that, too. It is not the court’s mandate to decide how stored grain should be used. But it has been loquacious on this front. It is not the court’s brief to push the idea of inter-linking India’s rivers. But it has been expressing opinions in this area too.
Isn’t it time the judiciary focused on what is really important – interpretation of the law, ensuring judicial independence, and protection of the constitutional guarantees to citizens? In the policy domain, the check on the executive is the legislature, not the judiciary.
On the other hand, it is certainly the court’s job to ensure that there is no corruption is the judiciary. It has done little on this count. It is certainly the court’s job to reduce the pendency of cases, but this is not quite happening even in the Supreme Court. It is, above all, the court’s job to ensure that the judiciary retains its independence – and here the Supreme Court seems to be ignoring the blatant efforts in Tamil Nadu to ensure the installation of certain kinds of judges.
Lawyers in Tamil Nadu have been going berserk in recent days because Chief Justice Sanjay Kishan Kaul has drawn up his own list of recommendations for judicial appointments. He is being pressured to appoint others representing some communities. According to a report in Bar and Bench, the Madras High Court Advocates Association is agitating against the Chief Justice demanding the right to have its views heard.
Should judges be appointed under mob pressure? What is the Supreme Court doing to protect the independence of its own high court judges?
The News Minute has published a brilliant and chilling report on the kind of thuggery and extortion going on in the Egmore Chief Metropolitan Magistrate’s Court, where lawyers fleece hapless clients by filing double bail applications, and then demand money from clients for withdrawing one of these pleas.
Most shockingly, these thugs-claiming-to-be-lawyers actually stoned one of their own to death on 31 January. If lawyers can actually kill one of their own to extort and make money by illegal means, what kind of judiciary are we running at the lower level? Tamil Nadu lawyers are clearly becoming a law unto themselves, and need to be reined in by the Supreme Court.
But so far the Supreme Court seems to be more attentive to the political pressures emanating from Tamil Nadu, not to the potential loss of judicial independence.
In July 2014, former Supreme Court judge Markandey Katju wrote in his blog that three former chief justices of India (CJIs) – RC Lahoti, YK Sabharwal and KG Balakrishnan – had a direct or indirect hand in confirming and then promoting a “corrupt” judge in Tamil Nadu. Worse, this was done on the basis of the political pressure exerted by the DMK, then a critical partner in shaky UPA-1, as Firstpost wrote at that time.
Isn’t this what the Supreme Court should focus on first, instead of wasting its time on deciding what a private club like BCCI should do or how the Comptroller and Auditor General (CAG) should be appointed, when the constitution is already clear on this?
It is good that the Narendra Modi government is finally trying to push the judiciary out of its turf. The executive is reclaiming some of the authority it lost during the weak administration of Manmohan Singh.
On Wednesday (11 February), a three-judge bench headed by Chief Justice HL Dattu backed away from hearing a petition to challenge the appointment of current CAG Shashi Kant Sharma, a former defence secretary in the UPA government, after Attorney General Mukul Rohatgi made a forceful plea to the court to stop meddling with appointments that were constitutionally in the executive’s domain.
According to The Times of India, Rohatgi made this bold assertion in an open court when the petition came up for consideration: “If the court attempts to frame guidelines for (the) appointment of CAG, it would be in the teeth of constitutional provisions. The constitutional mandate is to leave it to the executive. The CAG is appointed by the President on the aid and advice of the council of ministers headed by the prime minister. There is no role for the courts.”
The petition was filed by senior counsel and PIL specialist Prashant Bhushan, who has been busy trying to involve the judiciary in all kinds of policy areas in the name of ensuring independence and transparency. Bhushan quoted two earlier judicial decisions to support his plea for setting up a new procedure for appointing a CAG. Those judgments took away the government’s power to appoint judges, leading to the setting up of the opaque collegium system. Bhushan mentioned the judges cases to claim that CAG appointments must be taken out of the exclusive domain of the executive. Rohatgi’s strong arguments helped the court say no admitting Bhushan’s PIL.
Rohatgi, who may soon be back in court to defend the constitutional amendment for setting up the National Judicial Appointments Commission when it comes up for judicial challenge, countered Bhushan’s plea forthrightly. He said the Supreme Court’s judgments in the judges appointments case were “completely wrong. The selection and appointment of judges…was with the executive. One cannot say that the judges who were appointed by the executive prior to the judgment were not independent and that those who were appointed after the judgment were all independent.”
The moral is simple: the Supreme Court must focus on what is central to its role, and avoid transgressing into executive domain.
It could start by appointing a SIT to investigate what is really going on in Tamil Nadu’s judiciary. The lower courts seem close to losing their independence to political powerplay.