12, Jan 2018 | Teesta Setalvad

Close to two years ago, 15 months after the Modi government was sworn to power, an unholy controversy had arisen over the Modi regime’s open moves to influence India’s Supreme Court. Then attorney general, Mukul Rohatgi had made a series of aggressive, even controversial arguments in the Indian Supreme Court arguing for a supremacy of Parliament over the Supreme Court.

((A version of this article was published in the Indian Express on July 18, 2015. It makes for crucial reading today.))

It is barely eight days since the 40^th anniversary of the Emergency was commemorated. A dark period in independent India’s history, the formal declaration of Emergency was preceded by a period when the government of the day, bit by bit, in a sinister manner, eroded the independence of India’s Judiciary. The separation of powers on which the basic structure of the Indian Constitution squarely rests, is firm in the fundamental formation of both Judicial Autonomy and Independence. It is this judicial integrity, autonomy and independence that are under direct assault and severe threat today.

The tone and tenor employed by the current Attorney General, when he made his arguments in support of the National Judicial Appointment Commission (NJAC) are not only unbefitting of the post, but reflect the downgrading of the position of Attorney General that has been reduced, by successive governments, from a Constitutional Authority qualified to advise the Court on the fundamentals of the Indian Constitution and law (even if this, at time, militates against the act of a particular Government), to the reductionist role of a defence counsel, defending the policies and individuals within the government in power at the relevant time.

So, among other things, Rohatgi said, pushing for the NJAC as it stands today, that the Parliament is supreme in our system and even the Supreme Court needs to bow before it.

How inherently wrong this interpretation is. The appointment of Judges, their elevation to the highest position, as chief justices of high Courts and the ultimate one of the Chief Justice of India, their transfer among high courts of the land, all these moves manifest the inherent powers which must be both autonomous and independent. Appointments and transfers cannot be at the behest of any government though in a democracy, the government and the opposition must play a significant role. That the present system requires course correction is true, that the appointments of judges needs to open itself to scrutiny and tests of representation is also valid, but the new path charted must answer to tests of transparency and accountability, not further obfuscate them.

Once before, between 1973 and the actual declaration of Emergency on June 25, 1975, we experienced the brute overreach of executive power, manifest not in just the taking of political prisoners –which included the unholy mix of Communists and Jan Sanghis – but in the actual move to manipulate the Supreme Court, and through it India’s higher judiciary. India saw then the erosion of institutional autonomy that was resorted to, brazenly, by the government of the day.

On 25 April of that year, the government had, in a shocking move, superseded in appointment to the position of the chief justice of India, three senior-most judges, Justices Shelat, Hegde and Grover and appointed Justice Ray. The reaction from the Bar was swift and instantaneous. Bar Associations across the length and breadth of the country, Bombay, Kolkatta, Madras, Chandigarh, Bihar, Allahabad, the outrage was unanimous and expression of it courageous. The chairman of the then Bar Council of India, Ram Jethmalani in an official statement declared it as “the most shocking display of executive arrogance” and six of the country’s eminent jurists, MC Setalvad, MC Chagla, JC Shah, KT Desai, VM Tarkunde and NA Palkhivala issued a strong statement the very next day condemning the Government’s move as “a manifest attempt to undermine the Court’s independence.”  Through this one act, the prime minister made her intentions of having a ‘committed’ judiciary clear, committed not to law and the Constitution but to the whims of the Government.

Over the last two months or so, the country has been witness to the brash and brazen face off between the present regime in power in Delhi and India’s Supreme Court of India. Within the next few weeks, will come a decision from the Supreme Court that will, whichever way it goes, have a lasting impact. There has been little substance and even less grace in the attorney general’s arguments that have bordered on the rude and arrogant. “Parliament is supreme” he has bellowed and the Court must bow to its supremacy, is one such. That the Supreme Court of India, and many of our High Courts face a serious issue of credibility, a reality based on both perception and reality, gives this face off an even more sinister turn. The regime is riding high on this perception, never mind the fact that it, itself represents a worldview that has in past and present conduct shown scant respect for the protection of our fundamental rights or the Constitution.

Given this complex scenario, it becomes necessary to look close and hard at the present attempt (even more crass than in the 1970s) by the executive to browbeat our judiciary. We need to step back in real memory to the May of 1973, when a historic protest meeting was held in Bombay. Among the galaxy of speakers that addressed the meeting and included M. Hidayatullah, JC Shah, CK Daphtary, HV Iengar, K Subha Rao and of course, NA Palkhivala, the speeches, pithy and substantive, voiced strong dissent against the then Central government’s brazen move. My grandfather, MC Setalvad, India’s first Attorney General was among the speakers. I was eleven at the time.

The speeches were inspiring and erudite. [They were reproduced later into a booklet, A Judiciary Made to Measure] published by NA Palkhivala.]  Setalvad, who had been both India’s first Attorney General and the chairperson of the first Law Commission and Palkhivala had both reacted sharply to senior lawyer and union minister M. Kumaramangalam’s speech in Parliament, defending the government’s action. There is a chilling similarity between what was said then and what Rohatgi is saying today.

Kumaramangalam, justifying the central government’s actions said that since Parliament was supreme in the Indian scheme of things, it was but natural that when it comes to the appointment of the Chief Justice, the Government of the day will select a person who shall uphold the Government’s view of the Constitution!  Setalvad, critiqued this interpretation as partisan and misguided since this meant that the Government was bound to uphold not the philosophy in fact underlying the Constitution but a particular Government (and by that logic, a particular party’s) understanding of that philosophy.

To further quote, Setalvad, he said, “We all know that when a judge takes office, including the Chief Justice, he takes on oath of office and his oath pledges him, among other things, to decide cases in accordance with the Constitution. Now if he looks at the Constitution and feels that its interpretation, is according to him, in a particular direction or it has a particular meaning, he has not to give that direction or meaning to the words of the Constitution. He has to apply to the words of the Constitution, contrary to his own understanding, the philosophy of the Government. Let us analyse what the philosophy of the Government would, in ordinary practice, mean. The philosophy of the Government would mean the philosophy of the ruling party. Today it may be the philosophy of the ruling Congress, tomorrow it may be the philosophy of another party-it may be the Jan Sangh, it may be the Swatantra. Therefore, the judge or the Chief Justice has to keep track, when he is sitting on the Bench, in interpreting the Constitution, not of the language and the words of the Constitution, but of the philosophy of the ruling party which may change from time to time….”

What could be the consequences of such a move? Setalvad, “So, you have not to have an impartial Chief Justice but a judge or a Chief Justice who will bear in mind what, in effect, the Government thinks the Constitution means…….And the mischief does not end there. It goes further. Though the observations which were made in the Lok Sabha by Mr. Kumaramangalam refer to the office of the Chief Justice, they would apply all the way down to all judicial appointments. Every judge of the Supreme Court when making a decision in which Government policy is in question will have to think of his prospects of being appointed the Chief Justice and bear in mind what the philosophy of the Government of the day is, if he wants to be in good favour with the Government of the day is, if he wants to be in good favour with the Government in order to earn his appointment as the Chief Justice. Nay, it will travel down further. Take the judges of the High Court. Naturally and rightly they all aspire, as soon as they grow senior, to be selected for the highest Court in the land. But they must bear in mind that in order to be so selected they must also interpret the Constitution, not as they think it requires to be interpreted, but according to the philosophy of the Government in power at the centre for the time being.”As chair of India’s first law commission, MC Setalvad had with others also recommended that there should a severe restriction on post retirement postings for Judges of the higher courts.

Succinctly arguing against the ‘pre eminence of Parliament over the Court argument’, NA Palkhiwala, India’s pre-eminent jurist had said at the same historic meeting held in Bombay that,  “….Mr. Kumaramangalam has argued that the Government wants a Chief Justice who is able to recognize that Parliament is sovereign; that Parliament’s powers in relation to the future are sovereign powers….This ability required of the Chief Justice makes a mockery of the Constitution. Parliament has no unfettered sovereignty. The Constitution is supreme over Parliament; and not Parliament over the Constitution. The fundamental rights which are the basic human freedoms are fetters on Parliament’s powers. The Supreme Court has itself held by a majority in the great Constitutional case decided on April 24, 1973, that Parliament has no power to amend the Constitution in such a way as to alter the basic structure or framework of the Constitution; and the Government’s emphatic arguments to the contrary were expressly rejected. Mr. Kumaramangalam’s statement amounts to a refusal to accept the law as laid down by the Supreme Court.”

When we look back at those dark, dark days when authoritarian rule, the atrocities at Turkman Gate et al, the silver lining in the cloud were and are the audible protests from across the Bar. Today, when we await a verdict on which the future of India could hinge, a studied silence, by and large, prevails. Faced with a regime defined by its credo of vendetta-driven governance, the India that was built on the wisdom of men and women who had through sweat, principles and toil fought against a colonial oppressor, today needs to give voice to a spirited resistance that reaffirms our fundamentals.

Also read:

India’s Justice League: 4 SC judges Defend Democracy

Procedure not Privilege: Assigning cases in the SC Roster

SC wants Modi to explain Rakesh Asthana’s Appointment as CBI Director

CBI resembles Gujarat Bureau of Investigation