Comment Pieces

Markandeya Katju’s charges prove need for judicial transparency

Posted on July 28, 2014

Writing in his seminal book Hind Swaraj, Mahatma Gandhi stated something with an alarming degree of prescience. He wrote:

“Parliament is without a real master. Under the Prime Minister, its movement is not steady but is buffeted about like a prostitute. The Prime Minister is more concerned about his power than about the welfare of Parliament. His energy is concentrated upon securing the success of his party. If they [Prime Ministers] are to be considered honest because they do not take what are generally known as bribes, let them be so considered, but they are open to subtler influences. In order to gain their ends, they certainly bribe people with honours. I do not hesitate to say that they have neither real honesty nor a living conscience.”

This was written in the 1920s when Gandhi dwelled on the appropriateness of the Westminster model of Parliament in a country like India. Admittedly, Gandhi was being rather uncharitable to that model which, though not without its limitations, has worked well in England (and later in our country).

Forward to the decade of 2004-2014, however, Gandhi’s uncharitable thoughts get endorsement with episode after episode of how former Prime Minister Manmohan Singh has let “subtler influences” supersede his conscience. The latest report that helps Manmohan Singh and the UPA to prove Gandhi correct is the ‘Secret PMO Note’ first published by The Times of India.

This note reveals how, despite the then SC collegium unanimously deciding not to extend the period of an additional judge in Madras HC due to an IB report spelling out instances of corruption by that judge, the PMO wrote a note which directed clarifications be sought by the Law Ministry on why the name of that judge had not been recommended. The note also said that the proposal for recommending that judge be resubmitted to the collegium with clarification.

Shortly thereafter, the then CJI Justice Lahoti, although affirming that the collegium’s opinion was clear, allowed an extension of term for that judge to be given for a reasonable time in view of “the sensitivity in the perception of the Government”. Subsequent CJIs who headed the SC collegium gave the judge an extension of term and the judge was later confirmed as a permanent judge although transferred to another State.

There have been charges that direct intervention by Manmohan Singh’s office was due to the fact that UPA’s ally from Tamil Nadu expressed displeasure and even threatened to quit the coalition if the judge in question was not given an extension. Justice Katju’s recent blogs on this endorse these charges to some extent.

That this entire sequence of events reveals how Manmohan Singh was willing to discard serious reports outlining corruption charges against an individual whose extension as a judge in a high court was in question is obvious.

The note, although innocuously worded, had the impact of changing the mind of the then Chief Justice of India. Subsequent two CJIs also played along giving Manmohan Singh one less reason to worry about the survival of his Government if the charges are true. The myth of independence being touted around of late is shattered when such an incident surfaces. Quite obviously, the collegium could not exercise its final say on whether the judge in question got an extension.

There have been false parallels drawn between this incident and the Modi Government’s dealing of Gopal Subramaniam’s elevation to the SC.

Firstly, the collegium could always have disregarded Modi Government’s objections had Subramaniam not withdrawn his consent for elevation – the final ball was in the collegium’s court. Secondly, this was a case of Modi Government raising objection against appointing someone as SC judge. The UPA, on the other hand, was eager for extending someone’s term as judge. In cases where there is even an iota of doubt, it is always safe to follow the principle that Caesar’s wife must be above suspicion.

Indeed, even as a fallout of the Gopal Subramaniam episode, the lack of transparency has been a key concern with how judges who decide the law of the land are appointed. The Gujarat HC Chief Justice has been consistently overlooked for elevation to the SC because, as he alleges, he opposed HC judgeship for former CJI Altamas Kabir’s sister.

As someone jokingly remarked on social media, the only thing more opaque and secretive than our collegium system is the papal conclave.

It is time this system of appointment is taken away from the absolute control of the judiciary (which, as is evidenced, is not always absolute) to a commission in which concerns of all three pillars of our democracy have a co-equal role to play and in which maximum transparency is the rule.

Courtesy: NITI Central