Not everyone has sold out. Not everyone has abandoned their conscience. We have been speaking out all along. But when someone holding a high office speaks out—setting aside differences—people listen. They attach weight to what he says. That is why the speech delivered on Saturday by Justice Ujjal Bhuyan, on the Supreme Court’s collegium system, is of great importance. The remarks were made during his lecture titled “Constitutional Morality and Democratic Governance” at the Principal G.V. Pandit Memorial Lecture series at ILS Law College, Pune. He said:
“The Central Government can have no say in the matter of transfer and posting of High Court judges. It cannot say that such and such judge should not be transferred or should be transferred. It is within the exclusive domain of the judiciary. Therefore, when the collegium records that a transfer resolution was being modified at the request of the Central Government, it reflects a clear admission of the executive influencing collegium decisions.”
What does this mean? The judiciary is independent. The executive should never interfere in its functioning. But in practice, what have we seen—especially during the BJP’s rule over the last 11–12 years? We have witnessed both direct and indirect interference by the executive in the judiciary.
Earlier, the government interfered in the judiciary during the Emergency, in Indira Gandhi’s time. She spoke of a “committed judiciary,” meaning a judiciary accountable to the government. But the Emergency lasted only 21 months. There is no comparison between that period and the present. The current situation is far more frightening.
How does the government interfere in the judiciary? In three ways: through appointments of judges to the High Courts and the Supreme Court, through transfers of judges, and through the allocation of cases to different benches by Chief Justices of High Courts and by the Chief Justice of India in the Supreme Court.
Do you remember January 12, 2018? At the residence of the then second-most senior Supreme Court judge, Justice J. Chelameswar (after the then Chief Justice of India, Dipak Misra), in New Delhi, four senior-most judges—Justice Jasti Chelameswar, Justice Ranjan Gogoi (who later became CJI), Justice Madan B. Lokur, and Justice Kurian Joseph—held a press conference. What was the central issue? The bias shown by then CJI Dipak Misra in assigning cases to different benches. At the root of this bias was government interference in the judiciary. Left with no other option, those four senior judges resorted to a press conference—an event unprecedented in the history of the Indian judiciary. Helpless in their attempt to protect judicial independence, they appealed to the public through the media.
That incident created a huge stir, both within India and abroad. Judicial independence became a subject of wide discussion. Later, renowned jurist Fali S. Nariman examined this issue in detail in the chapter titled “The Citadel Never Falls: Except from Within” in his book God Save the Hon’ble Supreme Court. What he wrote on page 131 is particularly significant:
“Disharmony between the government and the courts is a different matter—if there were complete harmony between them, this country will not be worth living in!”
In other words, disagreement between the government and the courts is natural and necessary; a complete absence of discord would make a democracy untenable. A highly significant observation.
Another jurist who has consistently spoken out on judicial independence is Supreme Court senior advocate and human rights lawyer Prashant Bhushan. In his view, four Chief Justices of India bear a substantial share of responsibility for the decline of democracy in India: Dipak Misra, Ranjan Gogoi, S.A. Bobde, and D.Y. Chandrachud.
Another important work on judicial independence is the nearly 600-page [In]Complete Justice, recently edited by Justice S. Muralidhar. In the chapters “Judicial Appointments” and “The Working of the Collegium,” Justices Ajit Prakash Shah and Madan B. Lokur, respectively, discuss the flaws of the collegium system with clarity and depth. More recently, in A Controversial Judge by Ayaskant Das and Paranjay Guha Thakurta, the authors present extensive examples of judicial bias and opportunism. After reading that book, one risks losing faith even in the Supreme Court.
Now, after what Justice Ujjal Bhuyan has openly said, what more do we need? Where can the Supreme Court’s collegium hide now? What explanations can it offer? In a recent interview I conducted with Justice S. Muralidhar, he stated clearly that an honest judge does not need to bow to anyone. Assam’s son, Ujjal Bhuyan, conveyed the same message through his lecture yesterday. In today’s darkness of despair, may Ujjal lead us towards light and hope.