The real issues are about how judges select judges and SC scrapping NJAC Bill. Similarly, the Judicial Accountability Bill would have meant independent review of complaints, but that never saw the light of day either.
Several months ago, when the then Chief Justice of India (CJI) Dipak Misra was being vilified by many as being soft on the government, several leading lawyers and civil society activists lionized Justice Ranjan Gogoi – he was one of the four Supreme Court judges who held a press conference against Misra – and said that, given how Gogoi had gone public, prime minister Narendra Modi would never appoint him as CJI even though he was next in line. As it happened, Dipak Misra did recommend Gogoi as his successor and Modi did appoint him. And yet, today, many of those who lionized Gogoi are quite vocal in criticizing him.
A lot of the criticism, of course, is justified since, after he was accused of sexual harassment, CJI Gogoi presided over a 3-judge bench that discussed the matter and passed an order suggesting that the media refrain from publishing the detailed affidavit of the complainant – the order, interestingly, was issued in the name of the two other judges. Also, while Gogoi’s first response should have been to let an independent inquiry be conducted into the claims, he instead spoke of a conspiracy to hobble him; and, instead of answering the charges which go well beyond sexual harassment, the chief justice said that if charges like this were made, no good people would want to join the judiciary.
While Justice SA Bobde, the second-most senior judge in the Supreme Court, has constituted a 3-judge panel to look into the sexual harassment charges, the SC is also pursuing the line that the chief justice was framed and the heads of the Delhi police, the Central Bureau of Investigation and the Intelligence Bureau were also summoned for consultations based on the statement of a lawyer who says he has proof that this is a frame-up. The fact that two seeming contradictory paths are being taken at the same time makes it unclear as to how things will pan out – if there is a conspiracy, does it mean the CJI is not guilty of the sexual harassment charge? The question was raised in the Supreme Court on Wednesday, but no real clarity emerged other than reiterating the fact that both lines of investigation are being pursued in parallel.
A related problem is that if the 3-judge panel absolves the CJI of the charges, not too many are going to believe the panel was not influenced by the fact that he is the head of the judiciary; in order to convince people, the detailed panel report with its reasoning will need to be made public, and the chances of that happening are pretty slim. More than anything else, an in-house committee looking into charges against the chief justice seems to reinforce the view that, above all, the judiciary is a closed shop; the judges appoint each other and also review corruption and other charges against each other. Politicians are accused of having untrammeled power but they, at least, face the voter every five years; in the case of the judges, there is no higher authority. Theoretically, the political class can remove a judge through impeachment, but this requires major political parties to be united. In the famous case of Justice Ramaswamy, when it came to the vote after the arguments for and against the impeachment – Congress MP Kapil Sibal defended him – the Congress MPs simply walked out of the house, ensuring the impeachment couldn’t go through.
Ironically, many of the issues raised by the four judges – including (then) Justice Gogoi – when Dipak Misra was CJI remain unaddressed even today, including the allegations of high-handedness and the CJI presiding over benches that are deciding on cases concerning him. The letter to CJI Misra referred to the case against Justice CS Karnan, who had written a letter to the prime minister, giving an initial list of 20 corrupt sitting/retired Supreme Court and High Court judges. In that case, the letter says, “two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment”.
Till the 1990s, all judicial appointments were made by the government in consultation with the CJI. Over the course of three important cases, culminating in the Third Judges case in 1998, SC arrogated this power to itself by creating the collegium system to appoint/promote judges. The government tried to strike a balance by suggesting a National Judicial Appointments Commission (NJAC) to appoint/promote/probe judges, but SC struck this down. And this is while the SC admitted to serious shortcomings in the collegium and spoke of the need to make this more transparent. Ostensibly the SC struck down NJAC because it gave the government an equal say in selecting judges – 3 nominees each – but the judges and the government both had a veto right as well since no nomination could go through if any two members did not agree.
While the judiciary continues to decide on who has to be appointed/transferred – the government can delay acting upon this, but gets flak in the press each time it does – even less has been done to address the other issue of judicial corruption/nepotism. While many former judges criticized CJI Misra’s handling of cases like the Judge Loya one at the launch of Arun Shourie’s book last year, former Delhi High Court Chief Justice AP Shah added some perspective while also criticizing the Judge Loya judgment. Even after the bribery charge against Justice Nirmal Yadav, he said, she was only transferred to another court and her case is still pending after a decade; there was no proper investigation of the charges made, among others, against judges including the then CJI by former Arunachal Pradesh chief minister Kalikho Pul in his suicide note … the Judge Loya case, as Justice Shah said, was a trigger for the press event, but “what the judges allege has happened several times in the past”.
And the NJAC is, at least in the public memory, few remember the Judicial Standards and Accountability Bill that was brought in 2000 and sought to create a National Judicial Oversight Committee, a Complaints Scrutiny Panel and an investigation committee. Since two of the five members of the Oversight Committee were non-judges – the Attorney General and one eminent person appointed by the President of India – presumably, this too got scuttled as an attempt to muzzle the judiciary. It will a tragedy if, after such allegations on a person of the stature of the chief justice, long-term solutions like the NJAC and the Accountability Bill are not thought of.