The Big Story: Judging the judges

Concerns over the independence of India’s judicial system took on a new urgency on Thursday as the Narendra Modi government challenged the Supreme Court collegium’s recommendation for elevating two new judges. While the Union government accepted the nomination of senior advocate Indu Malhotra, it sent back the nomination of the Chief Justice of Uttarakhand High Court, KM Joseph. The collegium – the committee of a court’s five most senior judges – had recommended both their names jointly. Later in the day, Chief Justice Dipak Misra refused to stay Malhotra’s appointment, decoupling it from Joseph’s candidature. This set a new precedent: for the first time, a government has successfully modified the recommendation of the collegium.

The collegium system has evolved not from anything found in the Constitution or any law of Parliament but using judgements of the Supreme Court. Consisting of the chief justice and four of the most senior judges of the Supreme Court (or High Court, in case of a High Court collegium), the body selects judges for the higher judiciary. The Union government has no role to play in the selections other than to conduct an inquiry by the Intelligence Bureau into the candidate’s background.

Over the past four years, this system has come under immense strain as the Modi government has attempted to control judicial appointments. In 2014, Parliament passed a law that would change the process to give the Union government a greater say in these appointments – a law that was struck down by the judiciary. Unable to use the legal route, the Modi government used more informal ways of influencing appointments.

In 2017, Justice Jayant Patel was transferred from the Karnataka High Court to the Allahabad High Court. Since he was the senior-most judge in the Karnataka court, the transfer denied him the chance to become the chief justice of the court. Allegations swirled that this was a punitive measure, given that Patel had ordered the Central Bureau of Investigation to inquire into the murder of Mumbai teenager Ishrat Jahan by Gujarat police officers in 2004, when Narendra Modi was the state’s chief minister. In 2016, the Union government stopped the transfer of a judge from the Gujarat High Court to the Madhya Pradesh High Court, ignoring the collegium’s recommendations. In 2017, the Centre blocked the transfer of Valmiki Mehta from the Delhi High Court. The blocking of Joseph’s appointment this week comes after the judge had quashed the Modi government’s move to impose President’s Rule in Uttarakhand in 2016.

In a case identical to Joseph’s, the Centre had in 2014 rejected the collegium’s nomination of Gopal Subramanium while accepting that of three others. At this, Subramanium withdrew his name. RM Lodha, who was chief justice at the time, publicly upbraided the Union government for unilaterally segregating the collegium’s recommendations.

Curiously, the current chief justice did not follow this example. His decision takes on even greater significance as it comes on the back of concerns around the independence of the judiciary. In January, 2018, four judges of the Supreme Court had taken the unprecedented step of addressing a press conference, noting their dissatisfaction in the way the chief justice was allocating cases. Last week, the Congress moved a motion to impeach the chief justice, citing alleged cases of corruption against him.

The collegium system has many flaws and, indeed, the system of judges appointing judges has no precedent in other parts of the world. Even so, the process can only be changed in a legal manner. Given the backdrop of concerns around judicial independence, Chief Justice Misra’s move to allow the appoints of Indu Malhotra to go ahead was disappointing and strikes a further blow to the freedom of the courts.

The Big Scroll

  • Has the government signed the death warrant for the judicial independence of 19 tribunals, writes Prashant Reddy. 
  • The greatest enemy of India’s judiciary isn’t the government but its own secretive system, argues Gyanant Kumar Singh.
  • As Chief Justice Dipak Misra is backed into a corner, the Indian judiciary’s authority is at stake, writes Sruthisagar Yamunan. Misra needs to speak out.

Punditry

  • Modi needs to do more to factor in the evil of caste in the way he governs, argues D Shyam Babu in the Hindu.
  • The assumption that gender imbalance is a problem largely confined to the informal sector and traditional jobs is erroneous, argues this edit in Mint.
  • The Modi government’s hard approach in Kashmir seems to be misreading the crisis in the Valley, writes Vappala Balachandran in the Indian Express.

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Don’t Miss

Siddaramaiah is contesting from two constituencies in Karnataka. Neither will be easy, reports Sruthisagar Yamunan from Karnataka.

“Conspiracy theories aside, the caste matrix of Chamundeshwari presents a challenge to Siddaramaiah’s politics of AHINDA – the Kannada acronym for Alpasankhyataru or minorities, Hindulidavaru or backward classes, and Dalitaru or Dalits. Although the state’s dominant castes, the Vokkaligas and Lingayats, are officially counted among the backward classes, as far as electoral politics is concerned, the Congress’ AHINDA strategy pits other communities against these two groups. This is because most Lingayats are considered to be supporters of the BJP, and most Vokkaligas of the Janata Dal (Secular).”