By: Arun Srivastava
In the first ever manifestation of tactical retreat, the Union Law Minister, Kiren Rijiju refrained from suggesting that charges of sedition should be slapped against the Chief Justice of India D Y Chandrachud. During its nine years in power, the Narendra Modi government has used recklessly the draconian provision, a pitiful colonial hangover. Anyone who has criticised or spoken against PM Modi, irrespective of their social and political stature, has been deemed seditious, and many have been framed under the archaic sedition law. The threatening tenor of the Law Minister’s reaction makes it explicitly clear that he desired to convey the message to the CJI that he has ‘compromised national security’ with his emphasis on transparency in the Collegium’s reply to the Union government and therefore displeased Rijiju’s political boss, Narendra Modi.
Rijiju, before raising his accusatory finger towards the Supreme Court Collegium, should do some introspection and find out what were the factors that forced the Collegium to upload detailed resolutions on the SC website. The Collegium also posted the government objections to the names of three advocates, whose names were suggested by the Collegium, for elevation to judgeship in respective high courts. Unfortunately, Rijiju could not foresee that his insinuation and diatribe against the judiciary would boomerang.
Not daring to take the Collegium head on, Rijiju chose the circuitous way to coax the judiciary into submission to the executive by saying that to reveal sensitive and serious information provided by Research and Analysis Wing (R&AW) and Intelligence Bureau (IB) was a matter of “grave concern”. He also said: “If the concerned officer, who is working for the nation in a disguised or a secretive mode in a secretive location, will think twice (to give information) tomorrow, if his or her report is going to be in the public domain. It will have implications.”
Will Rijiju clarify since when the selection of judges for the Supreme Court and the High Courts has become a matter of national interest? Does he think criticising the functioning of the government, the prime minister or chief ministers – a fundamental right of every citizen in a functioning democracy – is an anti-national act and a grave crime? Two of the recommendations that the Supreme Court Collegium has reiterated were earlier returned by the Union government on account of the candidates’ social media posts. Mere posting of news stories critical of the government, or sharing an informed opinion on social media platforms, does not make anyone an anti-national. Or, is it that being “selectively critical on the important policies, initiatives and directions of the government” prevents one from becoming a judge?
Rijiju and his government have objected to another candidate on the basis of his homosexuality, and having a same-sex partner. Does Rijiju treat this relationship as an anti-national act as well? Simply put, the electoral motivation to present the BJP and the Modi government as the defender of high morality was the reason why that the candidate’s name was rejected. It ought to be mentioned that the Ministry of Law and Justice, in a letter to the Supreme Court Collegium, in April 2021, had stated: “Homosexuality stands decriminalised in India; nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India.” But in this case, the said candidate was not married to his same-sex partner. Simply having a relationship does not legally amount to marriage, and the Union government doesn’t have any legal basis to reject the candidature on that premise alone.
Moreover, the (ab) use of IB and RAW to serve the petty interests of the ruling party in the Centre cannot be ascribed as lawful action in the interest of the nation. The reports of the two agencies cannot be obviously bracketed as top secret or classified information, because the reports simply congregated public knowledge about a same-sex relationship and social media posts critical of the government as evidence of the candidates’ unsuitability for elevation to the judiciary. Sadly, Rijiju has been trying to mislead the people of the country with his histrionics. If the Law Minister had not tried so blatantly to force the judiciary to toe the government line, the Collegium would not have retaliated.
Modi government has tried to scuttle the nomination of Advocate Sundaresan for writing an opinion piece for a business newspaper where he said that former CJI UU Lalit’s (then a senior advocate and a criminal lawyer) proposed appointment as a judge of the Supreme Court was inappropriate. Sundaresan reasoned that Justice Lalit was a lawyer for the Union Home Minister Amit Shah for his alleged involvement in the infamous Sohrabbudin Sheikh fake encounter case in 2010. Certainly, Sundaresan had not dragged the name of PM Modi. He was only stating a fact-based apprehension, not an uncommon feeling among many in the legal circuits, although later proved unwarranted by former CJI Lalit’s short but extraordinarily impactful tenure.
The most important issue in this controversy is: does Minister Rijiju believe that judges of the Collegium are so naïve that they do not understand the implication of uploading the information on the website? Moreover, Rijiju’s criticism of the Supreme Court Collegium for uploading the excerpts of the so-called ‘secret’ RAW and IB inputs is sharply in contrast with the Centre’s alleged push for transparency in the judicial appointments process during the National Judicial Appointments Commission (NJAC) case eight years ago. Uploading the information is certainly an action supporting transparency. Rather, it is the Law Minister who is running scared that government credibility would further suffer if its sly manoeuvrings become public knowledge.
Rijiju has been repeatedly blaming the judiciary, especially the SC, for pendency of nearly 4 crore cases. As the Law Minister, he must be aware that Central and State governments have been major litigants and nearly 60 per cent of the cases relate to land questions. Will Rijiju tell the people what he has personally done to lessen the filing of nonsensical cases and unburden the courts? It is well known that whenever the bureaucrats are unable to solve a complicated issue, they prefer to toss it towards the judiciary, weighing it down further with cases that go on for years on end.
Rijiju is right in saying that both the judiciary and the Union government would have to make a combined effort to tackle the menace of the staggering case backlog. He is also correct in saying: “One organ of the state cannot alone do everything.” But he must refrain from carrying out the task of the RSS and BJP to saffronise the judiciary and turn it completely subservient to the Modi government.
The Collegium only some days back cleared 20 names for fresh appointments to four different high courts and forwarded their recommendations to the central government. Making a departure from the earlier practice, this time it has prepared a detailed note in support of each candidate, justifying its decision to clear the appointees. One hopes that this time Rijiju or his political boss would not put up hindrance.
Some of the retired judges accuse the Collegium of not following transparency in choosing the candidates. They are also not happy at the induction of chief justice of one High Court into the Collegium of another High Court. In their perception, the CJ of the same High Court would know better about the candidate. However, does a Chief Justice’s sitting on the same High Court’s Collegium not encourage nepotism and favouritism? A CJ from other High Court would hopefully be a neutral person who does not know the local candidate.
It is worth mentioning that in 1993, Justice J S Verma had observed that the appointment of a government does not have any real basis, it is simply assumed. The argument that for a proper and transparent appointment of judge, the government must have its representative on the collegium, absolutely lacks rationality. The collegium members take decisions on recommendations after getting inputs from the government and the consultee judge who belongs to the high court for which appointments are going to be recommended. As per the Memorandum of Procedure (MoP) – a guide to judicial appointments in the higher judiciary – once the Supreme Court collegium clears a file, it is sent to the government for final notification.
Earlier, the Collegium had recommended the name of advocate Nagendra Ramachandra Naik as a judge of the Karnataka High Court for the third time. Previously too, he was nominated in 2019 and then again in 2021. But, the Union Government seems to be sitting on his file.
No doubt Collegium needs reform, but the government must keep away from interfering in its functioning or pressure the Supreme Court into having the state’s nominee on board. It is really sad that the Government constantly tries to interfere in judicial appointments. Former SC Justice Lokur had sounded the dire warning: “In my view, the Government is far more opaque than the Collegium.” (IPA Service)