The recent utterances of the Chief Justice of India Ranjan Gogoi asking the judiciary to resist populist forces are an indication and general perception that there is increased threat to the independence of judiciary.
Earlier this week, speaking at a conference of Chief Justices at Shanghai Cooperation Organisation at Sochi, Russia, CJI Gogoi highlighted that the judiciary needs to guard itself against populist onslaughts.
He said when the legislative and executive wings get swept away from their duties and goals under the Constitution by waves of populism, it is for the judiciary to rise and stand up to the populists forces and protect the constitutional ethos from being desecrated by the populists.
Justice Gogoi was of the view that such forces across the world have reaped tremendous pressure on judicial organs and the judiciary in many countries had succumbed to such populist forces. Among other things, he also talked about the public aspirations when it comes to expectations of an independent judiciary. According to him independence is the soul of a judiciary and if it fails to enjoy public confidence, its deliverables would never constitute `justice’.
As an institution, Judiciary is the last hope for the common man to get justice. Therefore for the survival of democracy and to ensure confidence among the public it is essential that this institution is kept away from executive or other external interference.
It is no secret that on January 12, 2018, Justice Gogoi, along with three retired Justices J Chelameswar, Madan Lokur and Kurian Joseph raised a revolt against the then Chief Justice of India Dipak Misra for many of his unilateral decisions in allocation of cases.
At that time he maintained that there was interference from external forces impinging on the independence of judiciary. The fact that Justice Gogoi had raised the same issue again in an international conference clearly indicates that the threat perception or interference in judiciary is more real than ever before.
Over the years there is evidence to suggest that whenever the Union government functions without a clear mandate, the judiciary steps in to question the policy decisions. The executive would then lament that due to judicial activism, the government is not in a position to implement its policy decisions.
The NDA government has the dubious record of interfering with judiciary ever since it was swept to power in May 2014. Within a few days, it stopped the elevation of eminent lawyer and constitutional expert Gopal Subramanian as a judge of the Supreme Court on the allegation that he was close to the Congress party.
Subsequently it enacted the National Judicial Appointments Commission to ensure that Executive has more say in the appointment of Judges. After the Supreme Court struck down the law as unconstitutional and asked the centre to put in place a Memorandum of Procedure for a transparent process of selection of judges, the Centre reiterated its intention to have a say in the appointments.
The stand-off between the judiciary and the government continues for over four years as consensus eludes in framing the MoP. While the government wants final say in rejecting a candidate after his selection, the CJI feels that the final decision in appointment must vest with judiciary alone.
Last year the Centre tried in vain to stop the elevation of the then Chief justice of Uttarakhand High Court KM Joseph to the Supreme Court. The only mistake Justice Joseph did was sitting in a bench he set aside the Presidential rule in Uttarakhand imposed by the NDA government. As the judiciary stood firm, finally his appointment was approved.
Recently Justice Gogoi was so upset when sexual allegations were leveled against him by a woman employee posted in his residence. The timing of the allegations in the midst of hearing of review petitions in Rafale case gave rise to suspicion that this was being done by the executive to stall attempts to revive the case. In December 2018 the apex court gave clean chit in the Rafale case but the exposure made by The Hindu gave bonafide reasons for the petitioners to seek review on which orders have been reserved.
Within two days of his forthright speech in a foreign soil, Justice Gogoi wrote three letters to the Prime Minister Narendra Modi requesting the Union Government to increase the strength of Judges in the Supreme Court and High Courts for speedy disposal of cases and to clear the huge backlog of cases pending adjudication for years. He also wanted the retirement age of judges to be increased by two to three years.
Under Articles 224 (3) and 124 (2) of the Constitution, the retirement age of High Court Judge is 62 years and for Supreme Court judge it is 65 years. Rising the retirement age will require a Constitutional amendment. At present the Supreme Court has its full strength of 31 judges. But in High Courts, about 400 posts are vacant and it may take two to three years to fill up these vacancies.
It was in this context the CJI Gogoi wrote to Prime Minister for increasing the strength of judges in the apex court. The CJI has pointed out that it was in 1988, the strength of judges was increased from 18 to 26 and in 2009 it was further increased to 31 judges.
The Supreme Court currently has a pendency of more than 58,000 cases. The CJI in his letter has stated that inadequate judge strength is holding back the CJI from constituting Constitution Benches to hear cases concerning the interpretation of the Constitution.
Another letter from the CJI has sought for giving fixed tenure appointments to retired SC and HC judges as per Articles 128 and 224A of the Constitution respectively in order to tackle the issue of mounting case arrears. With more than 43 lakh cases pending in the 24 HCs, Justice Gogoi said, “One of the prime reasons why we are not able to contain the ever-growing pendency is shortage of HC judges. At present, 399 posts, or 37% of sanctioned judge-strength, are vacant. The existing vacancies need to be filled immediately. However, despite best efforts put in by all stake holders, it has not been possible to appoint judges to bring the working judge-strength anywhere close to the sanctioned judge strength”.
The points raised by the CJI for protecting judicial independence are not just a matter for judges and lawyers and the judicial institution but a matter which concerns our Constitution and democratic system, and is the concern of all citizens and the nation itself.
It should be pointed out that for the last 2 to 3 years there had been a lot of talk within the legal fraternity, as also the rights community and democratically minded citizens over increasing attempts to politicise and influence the judiciary, by way of undue influence of the process of appointments of judges, manner of constitution of benches, allocation of cases and so on.
Time has come for the nation to seriously introspect and openly discuss these issues to ensure that the Indian Judiciary remains a truly independent institution. The judiciary is an important bulwark against attempts to dilute, change and limit the fundamental and constitutional rights of Indian citizens and against majoritarian tendencies that seek to undermine our constitutional values of Liberty, Equality, Democracy, and Secularism.
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