Chief Justice of India, TS Thakur created a stir during India’s 70th Independence Day celebrations on Monday. The CJI going public with his unhappiness with Modi government for the second time within three days for not clearing the names recommended by the Supreme Court collegium for appointment of judges in High Courts, more than indicated that the relations between the central government and the higher judiciary are rapidly turning uneasy with each passing day.
It came as a bolt from the blue for the government of the day, which would have obviously wanted undivided attention on the Red Fort address of the Prime Minister.
The images of Chief Justice of India fighting his tears during the conference of Chief Ministers and Chief Justices in April this year in presence of the Prime Minister are still fresh in the minds of countrymen.
With no chances of any meeting ground between the judiciary and the present central government on the decades-old issue of who would have the final say in appointment of judges in High Courts and the Supreme Court, it is amply clear that this vexed issue will remain unsolved in the near future.
What is, however, surprising is the considerable level to which the Modi government has managed to antagonise the judiciary within just two years in office.
If you compare it with the previous Congress-led UPA government, it took nearly seven years in power for the Manmohan Singh government to be at loggerheads with the judiciary.
There were no major problems between the judiciary and the UPA government during its first tenure, though the Supreme Court struck down its decision to impose President’s rule in Bihar in 2005.
There were minor irritants, but the UPA-I adopted a conciliatory path, so much so that despite announcing its intention to amend the four-decade old law to impeach judges in 2008, the Manmohan Singh government did not introduce that bill in parliament.
It also avoided moving an impeachment motion against Kolkata High Court judge Soumitra Sen and it was left to a combined opposition to bring the motion in Rajya Sabha in 2009.
All this changed in UPA-II, when faced with regular tough observations from the Supreme Court in a series of scam related cases, the Congress ministers began attacking the judiciary.
Rattled with adverse judgments in the 2G scam and quashing of the CVC appointment, Congress ministers and spokespersons openly spoke about changing the existing procedure to appoint judges and how to discipline them.
This led to angry reactions from judges and a no-holds bar verbal war was on between the two sides.
Congress leaders wanted judges to be barred from making oral observations in open courts, their ministers went to the extent of questioning the Supreme Court of keeping top businessmen in jail in the 2G scam for months.
All this was strongly rebuffed by the judiciary, with the Supreme Court going to the extent of terming as “disturbing”, the comments of then law minister Salman Khurshid in 2011 that “What will affect the functioning of the government if other institutions do not understand the kind of political economy we are faced with today: what is needed to encourage growth and investment? If you lock up top businessmen, will investment come? What optimal structure should be put in place for investment to come.”
Khurshid was forced to clarify later that it was for the courts to decide who should be locked-up and Manmohan Singh had appealed for stray remarks to be ignored.
Acrimony continued and so did the strong remarks of Congress ministers against the judiciary. When Ashwani Kumar was replaced by Kapil Sibal in May 2013 following Kumar’s dubious role in changing the CBI affidavit in the coal scam, the Congress had by then decided to tame the judiciary.
In September 2013, Sibal piloted the Constitution amendment bill to change the existing procedure for appointment of judges in High Courts and Supreme Court.
Ironically, then leader of opposition in the Rajya Sabha, Arun Jaitley led a BJP walkout when on the 5 September, 2013, the House passed The Constitution(120th Amendment) bill, 2013, to amend articles 124 (2) and 217 (1) of the Constitution of India, 1950 to establish the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary.
The UPA government, which was on its last legs failed to get the bill passed in the Lok Sabha and left office with an idea for the Modi government on how it could tame the judiciary.
The Modi government, riding high on biggest mandate for any single party government in 30 years, wasted no time in getting the Constitutional amendment bill to establish the National Judicial Appointments Commission for appointment of judges within months of coming to power.
Its joy despite enjoying political unanimity on the issue, was shortlived since a Constitution bench of the Supreme Court struck down this law and restored the 1993 Collegium system of judges appointment.
Modi government further suffered two major reverses following the NJAC setback — its failure to justify in the Supreme Court the imposition of President’s rule in Arunachal Pradesh and Uttarakhand.
Faced with judicial reverses, the Modi government is desperately trying to send a signal to the judiciary to fall in line by blocking the recommendations being sent by the collegium for appointments to various High Courts.
Given the experience of Indian democracy so far and the strength of the judiciary, which has consistently withstood the test of impartiality with the sole exception of emergency in 1975, Modi government’s attempts seem unlikely to succeed.
The stubbornness of Modi government in dealing with the judiciary will only further enhance the credibility of the judiciary in the eyes of the common man of this country.
The author is a former journalist who extensively wrote on legal issues and is currently media advisor to the Delhi Chief Minister.