Anil Divan Foundation

[News Clip: Indira Gandhi on campaign trail..] 

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Indira Gandhi: Freedom cannot survive without consolidation of economic independence and a firm base of self-reliance. This has been the Congress creed. The Congress you all know… Reporter: Mrs Indira Gandhi once the most powerful woman in India, now simply the most ambitious. But that ambition may soon return her to power as India’s Prime Minister, a job she lost nearly three years ago. Her chance will come at elections to choose a new Lok Sabha or lower house in India’s Parliament.

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Host: What we just heard was a report by the Associated Press in the run-up to the seventh general elections in 1980. Elections were called after the Janata Party government’s two-year tenure ended in late 1979. Aiming to make a comeback, was none other than Indira Gandhi. She eventually led the Congress to victory with a comfortable majority in the Lok Sabha.

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Her previous term had seen vindictive strikes against the judiciary. In two instances, judges had been appointed Chief Justice of India out of turn. Would her new term result in constitutional chaos like the last time? Or had her attitude towards the courts mellowed? These were the burning questions as Indira Gandhi took oath for her fourth and final term as Prime Minister.

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Welcome back to Friend of the Court. I am your host Host Karnad. 

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In the last episode, we explored the friction between the government and the courts over amending the Constitution, and how the Kesavananda Bharati case gave us a framework known as the Basic Structure. Through this judgement, the court imposed certain restrictions on Parliament’s amending powers. And the government responded by meddling in judicial appointments. In this episode, we look at continuing tensions between the government and the judiciary and how the court ultimately asserted itself.

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Host: The Janata Party government came to power in 1977 in the first general elections held after the Emergency. With Shanti Bhushan as law minister, the new government undid some of the damage from the Indira Gandhi years while appointing the next Chief Justice. Instead of superseding judges who had sided with the government during the Emergency, they restored convention and appointed the senior-most judge. Just as there appeared to be a glimmer of hope that the relationship between the government and the courts would mend, the government succumbed to infighting and collapsed. Indira Gandhi returned in January 1980. She was still keen on curtailing judicial power. And this time, her government chose a subtler but more menacing route to undermine the courts. Legal historian and lawyer, Abhinav Chandrachud explains:

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Chandrachud: The government put in place a system of transferring judges,  High Court judges, about one third, if I'm not mistaken, of the total strength of the High Court, from one court to the other. And mind you, the famous Shakespearean quote, “the Devil may cite scriptures for its purpose”. Sothe government never said we want to interfere with the independence of the judiciary. The government cited a report of the state's reorganisation commission in 1955 to justify why it wanted to transfer High Court judges and the reason given by the government was well, the states reorganisation commission in 1955 said said that we want to integrate India… And really what happens then is that a power is given to the government to decide which of the one third judges will be transferred High Court judges from one state to the other. The unwritten idea being or the unsaid idea being that look, if a judge decides a case against the government, there is a great chance that that judge will magically be picked to be transferred. 

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Host: The government’s transfer policy outraged lawyers across the country. Several went to court challenging the policy in general, and some transfers in particular. The petitions were bunched together, and boiled down to one question: what did the term “consultation” in Article 124 of the Constitution mean? As we saw in the previous episode, that article laid out the procedure to appoint judges to the Supreme Court. However, it did not spell out whether it was the government or the Chief Justice who had the final say. In 1981, in what came to be known as the “First Judges” case, a bench headed by Justice PN Bhagwati gave the government the casting vote. Alok Prasanna Kumar, co-founder of Vidhi Center for Legal Policy, a legal think tank, explains:

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APK: So this is the first time that term is interpreted in the Constitution. And it just consultation  means consultation, we'll take your views, but if we don't like it, we'll discard it. That leads to another phase of this kind of back-and-forth where a lot of judicial appointments get delayed, they get held up. 

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Host: The court held judicial independence to be a part of the Basic Structure of the Constitution. This meant it was a feature that Parliament could not tinker with at all. But the court also held that the judicial upper hand in the appointment process was not linked to judicial independence. It saw no contradiction in interpreting Article 124 of the Constitution to mean that the government had an upper hand in appointments. Senior lawyer Santosh Paul who has edited a volume on judicial appointments tells us more: 

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Paul: If you read Bhagwati’s judgement, he’s very clear. Why does the executive have a say in the appointments? It is because they are accountable to the legislature, the legislature is an elected body of people. Now the question comes, did it serve its purpose? It did not. Because when the executive had the final say, and the primacy it became extremely political. Most of the appointments were favourites of the government, unless you had curried their favour. 

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Host: The weaknesses of the system enshrined in the First Judges case became apparent soon enough. Let’s take a look at one particular case from 1991, as an example. An unusual appointment controversy erupted in the quiet hill state of Mizoram when the state governor recommended one KN Srivastava for the Gauhati High Court. The man had no relevant experience apart from an LLB. An irate lawyer called Kumar Padma Prasad who practised at the Gauhati High Court challenged this appointment. Kailash Vasdev, a senior advocate and one of the lawyers in the case, explains: 

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Vasdev: See, the case of Kumar Padma Prasad, is a very remarkable case. Remarkable because for the first time, Kumar Padma Prasad who is a lawyer practising in Gauhati, filed a writ petition seeking a stay of the warrants of appointment of one KN Srivastava. The warrants of appointment for the appointment of KN Srivastava were issued at a point of time when KN Srivastava was a legal remembrancer of a North Eastern state. Now for a legal remembrancer to be recommended for judgeship was a question. Whether he fell within the eligibility criteria as enshrined in the Constitution?

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Host: A legal remembrancer usually takes care of administrative tasks in the government’s legal departments. The Mizoram Bar Association was stridently opposed to the appointment, and highlighted questions of Srivastava’s integrity. The former legal reporter, Krishan Mahajan, who is now a practising lawyer, covered the case for the Indian Express. What he saw shocked him: 

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Mahajan: He was around canvassing openly for his appointment. And talking to him, itself was a revelation. Because one was appalled, appalled by the fact that if these kinds of people are going to be appointed, then then what's the future? It doesn't matter what your qualification was, doesn't matter, whatever your track record, in terms of integrity is, it doesn't matter what your experience is, it doesn't matter if you are legally qualified or not. It's just all that it matters is your connections.

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Host: At first, Prasad was able to get a stay on Srivastava’s appointment, a result that Vasdev recalls  caused a pandemonium because of how unprecedented this was. With the matter pending, Srivastava was prevented from taking oath, even though the final piece of paperwork for his appointment was in place. Meanwhile, the case files were hurriedly moved from Gauhati to Delhi, where the petition had now been transferred. At this juncture, Anil Divan stepped up to the plate. Appearing before the Supreme Court, he highlighted Srivastava’s lack of qualifications as well as the faults within the consultation process. Vasdev elaborates:

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Vasdev: So we had briefed Mr Divan who was very kind to accept this kind of a challenge because that was something which was on his mind all the time, that the judiciary should not only appear to be independent, but must be independent. After hearing the matters, they reserved the judgement and in a short while they set aside the warrants. So that was a very distinct change in a submissive judiciary to bring about the change. Kumar Padma Prasad's case is unique in the annals of our system. It is the only instance that I can recall where the warrants of appointment of a judge were stayed and eventually quashed. Normally when warrants are issued, under the order of merit, or under any other provisions of law, they are not stayed. Warrants by the President appointing a person as a judge is a matter which is considered to be sacrosanct because there is an assumption that all provisions of the Constitution including eligibility, including competence, have been cleared by a full bench.

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Host: The Kumar Padma Prasad case was restricted to just one flawed appointment. But it reinforced the widely-held belief that the government was running the show. In the same period, concerns over appointments intensified when a Supreme Court Judge, Justice V Ramaswami was accused of financial misdeeds.

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[News clip] 

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11 May 1991, mahabhiyog chalane ko Lok Sabha me voting ka din tay kiya. Justice V Ramaswami ka jana t On May 11, 1991 a date for impeachment proceedings was set in Parliament. His exit was virtually certain… 

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Host: As it turned out,  Justice V Ramaswami had been appointed to the Supreme Court despite the reservations of the Chief Justice. But questionable appointments were not the only problem plaguing the judiciary. The government’s upper hand in the appointment process was also resulting in a huge number of judicial vacancies. 

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All this raised pertinent questions: was the prevailing system of appointing judges working? And was the advice of the Chief Justice enough to preserve judicial independence? The Supreme Court would soon get an opportunity to address these questions. 

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Several years earlier a bunch of Public Interest Litigations or PILs had been filed with a simple demand: fill up vacant posts and expedite the lakhs of pending cases in the country. By 1990, the government filled the judicial vacancies. But as the petitions were argued, the human resource problem morphed into a constitutional question. 

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Who should have the upper hand in appointments? The Chief Justice decided to form a nine-judge bench to revisit the 1981 First Judges’ ruling which gave the government the deciding say in appointments. A body of lawyers called the Supreme Court Advocates on Record Association, represented by Fali Nariman, argued for a more fundamental role for the judiciary. In what came to be known as the “Second Judges” case, a fresh bench reversed the 1981 decision. This was a huge shift in the balance of power in the appointment process. The court had now given the judiciary the final say, effectively insulating itself from government influence. Two questions lay at the heart of the 1993 verdict, as Chandrachud tells us. 

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Chandrachud: Does the opinion of the Chief Justice of India bind his colleagues? And does the opinion of the Chief Justice of India bind the President? And really, this was the constitutional compromise that was struck by the Supreme Court in the 1990s, where the Supreme Court, really the idea was that no single person should have so much power that he or she is able to dictate to anybody who the judges of the Supreme Court are going to be or anything of the sort. And so really, the idea was to set up a wider body, which would have the power to make judicial appointments. And so therefore, the collegium system was born. 

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Host: With this, the judiciary had definitively wrested back control. The Chief Justice in consultation with the two senior-most judges would make recommendations to the executive. The government could ask the collegium to reconsider its recommendations. But unlike before, they would now have to make the appointments if the collegium stood firm. The court established judicial independence as part of the Basic Structure of the Constitution. 

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It held that the judiciary’s upper hand in the appointment process was crucial to judicial independence and it was non-negotiable. This meant that the government could no longer dominate the appointment process.  The court chose a moment of great political turmoil to assert its autonomy. The era of coalition politics had arrived, limiting the government’s ability to take on tricky subjects like judicial reforms. Some lawyers, like Santosh Paul saw the collegium as a promising development: 

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Paul: In very highly polarised societies, the political component coming into the picture is something to be wary of, because if you look at post-1993, you will find a series of decisions which tackled several, you know, issues, be it, you know, corruption, be the coal scam, be it you know, seeing that the rights of prisoners, right to a, you know, to be free from any torture, all these decisions came about, because there was an independent judiciary in place. It would not have happened otherwise. 

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Host: On the face of it, it seemed like a victory for independence. Judges were able to adjudicate fearlessly against the government in critical cases. But the collegium system, now deeply linked to the basic structure, was not without its flaws. For one, it worked somewhat informally, with no regular meetings or clear protocols. It was highly dependent on the sitting Chief Justice to set the tone for how the collegium would conduct its business. The main complaint was its lack of transparency, as lawyers such as Dushyant Dave and Kapil Sibal told us. All this secrecy led to a widespread feeling that judges had become accountable to no one. It also reinforced suspicions of favouritism within the judiciary, and that undeserving candidates got appointed on the basis of social connections. 

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Bhagwati: I am against the collegium system. Former system was quite alright. Chief Justice of India and the law minister and they would consult. When I was the Chief Justice, and I had to make an appointment I would consult the Attorney General, I would consult one or two senior judges in order to see I made the correct recommendation. But there never was a collegium of five… so that bargaining goes on amongst them. You have my men and I have your men. That is why the quality is going down. 

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Host: That was an archival clip of Justice Bhagwati, who authored the majority opinion in the First Judges verdict giving the deciding say to the government. He was not alone in condemning the collegium. Dushyant Dave, senior advocate and former president of the Supreme Court Bar Association echoed similar concerns: 

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Dave: Since the collegium. system was introduced in 1993, I honestly, I do not think that the judiciary has become better after the judges have wrested control upon themselves for appointing judges. In fact, to my mind, I must say that judiciary standards have fallen substantially. There have been serious, serious allegations of lack of integrity against many judges across the country, including half a dozen former Chief Justices of India.

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Host: Despite the limitations of coalitions, governments did not sit quiet in the years after judicial power soared. In 1998, the Vajpayee-led NDA vehemently disagreed with some of the collegium’s names and dragged its feet on formalising them. Rumours swirled that the Supreme Court was considering contempt proceedings against the government. Finally, the President moved the Supreme  Court, seeking clarity on the mechanics of the collegium. But the Attorney General, the government’s top law officer, was careful to say that this was not a review of the collegium itself. In response, a nine-judge bench gave an opinion that reaffirmed the system, with one significant change. Alok Prasanna Kumar explains:

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APK: This time, it's a unanimous judgement headed by Justice Bharucha, who would then go on to become Chief Justice of India. And this judgement basically says that actually, there's not three but five and clarifies a number of other downstream issues. So it wasn't a PIL or a conflict, it was a reference made by the Union. And the matter sort of now rests about how the Collegium system worked for the longest, which was a bench of five judges, the Chief Justice could never be outvoted by the other judges in the collegium, the Chief Justice had a veto effectively over the process.

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Host: As Kumar tells us, the Chief Justice retained veto power but would now have to consult the four senior-most judges rather than just two, while recommending Supreme Court appointees. This became known as the “Third Judges” case and it shaped the way the collegium system is supposed to function.

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Audio: Today is India’s 51st Republic day and the golden jubilee of the republic, indeed a historic day… it was on this day that the Indian republic was born laying the foundation of a sovereign democratic nation…

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Host: In 2000, the golden jubilee year of the Constitution the Vajpayee government decided to set up a commission to review its working and suggest changes. Under the chairmanship of retired Chief Justice MN Venkatachaliah, the commission took two years to submit a bulky report that ran into nearly 2,000 pages and 279 recommendations. Crucially, it recommended that a five-member judicial commission headed up by the Chief Justice should replace the collegium system. It also said that two senior judges, the law minister and an undefined “eminent person” should be a part of it. This was an early iteration of the NJAC and the beginning of a string of attempts to bring back a measure of the government’s say.

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The report came at a time when scandals in the judiciary were tumbling out of the closet. The same year that the commission submitted its report, Anil Divan warned in an Indian Express opinion piece that the judiciary’s image had suffered and that it needed to set its house in order. 

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Otherwise, the government could exploit public sentiment to meddle with the judicial appointment process. 

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As the demands to make judges accountable grew, the 2000s saw periodic high-profile scandals in the judiciary.  One appointment made to the Madras High Court in 2003 became particularly thorny.

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News: Shanti Bhushan: I was the petitioner myself because very few people would be willing to file petitions against judges and particularly attacking the conduct of Chief Justice of India… 

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Host: That was senior advocate and former law minister Shanti Bhushan. In 2007, Bhushan and lawyer Kamini Jaiswal filed a petition in the Supreme Court challenging the appointment of Justice Ashok Kumar as a permanent judge of the Madras High Court. Justice Kumar was first appointed as an additional judge of the High Court, and he was finally confirmed as a permanent Judge only in 2007. Kumar’s appointment was believed to be a reward for granting bail to DMK leader Karunanidhi and his son MK Stalin in 2001. With the DMK as a coalition partner of the UPA at the centre, Kumar ended up getting several extensions to his term. Jaiswal tells us more about why they moved the court: 

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Jaiswal: He was appointed as an additional judge, then even though the collegium you know, rejected his the recommendation of confirming. There were eight judges appointed, I think six of them were confirmed, and two were not confirmed. He was one of them. And everybody knew why he was not confirmed. And obviously the record would show it was there was some questions about his integrity. So and therefore, what was challenged was that you can't go on you know, if you know, have some doubts about the integrity of the person, how can you just go on extending his you know, tenure as an additional judge? 

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Host: Anil Divan represented the petitioners, Bhushan and Jaiswal. Divan argued that Justice Kumar was re-appointed as an additional judge and his term was extended many times by the Chief Justice, despite objections from other members of the collegium. When the Supreme Court finally entertained the petition, Justice Kumar had only a few months of service left. The court did not strike down his appointment.

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However, the two-judge bench did criticise the former Chief Justice of India RC Lahoti, for surrendering the judiciary’s say in deciding Justice Kumar’s appointment and extension. Coming from the top court, this was an open denouncement of the collegium. Cases such as this one, only furthered scepticism of the appointment system. Even Kapil Sibal, who appeared alongside Fali Nariman in the 1993 Second Judges case which produced the collegium system, regretted the outcome, as he tells us:

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Sibal: We attacked the governmental process of appointment. And the fact of the matter is that I'm sure Fali is and I certainly am, deeply disappointed. because we approached the subject because we had a sense that maybe, if we take this power away from the government, the men who are going to appoint judges, that is the collegium system, will rise to the level, rise to the occasion. And then, we'll have better appointments. 

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Host: In 2013, as law minister in Manmohan Singh’s government, Sibal got a chance to remedy what he saw as a historic blunder. Except this time the battlefield was not the court; it was Parliament. Sibal introduced two bills to kickstart judicial reforms. The move, coming towards the fag end of the UPA government’s tenure sought to replace the collegium system with a six-member National Judicial Appointments Commision. Sibal told us that giving the government a say in appointments presented no conflict, even though they are party to the largest number of cases:

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Sibal: Why should the government not have a say? Government also and don't assume that every recommendation made by government will be will be questionable. .Don't assume merely because government is government that everything is tainted. No. That's not true at all. 

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Host: Sibal and the UPA were not the only proponents of an NJAC. The opposition, led by the BJP, supported it too. 

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But a section of lawyers saw the NJAC as a looming threat to judicial independence. Towards the end of the UPA’s second term, the Bar Association of India convened a meeting. Its president Prashant Kumar recalls: 

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Kumar: The murmurs were there, we had discussions during UPA in Bangalore, with [unclear] all and we had collaborated there and both Mr. Divan and myself have gone there. And that is where we highlighted it. … It is not that all of us supported collegium. But we found NJAC to be a bigger evil in terms of protecting or destroying judicial independence. So we were the most vociferous critics of the collegium system. But this was not something which had to replace it.

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Host: The UPA’s NJAC bills ultimately lapsed when its term ended and the Lok Sabha was dissolved in 2014. Shortly after the NDA came to power in May 2014, a fresh set of scandalous allegations rocked the court. This time, they came from an insider: 

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News of Katju’s allegations (https://www.youtube.com/watch?v=LLKI_0phBw8) and https://www.youtube.com/watch?v=_qqmweSMWbQ [Khabar is vakt aa rahi hai Supreme Court ke purva chief justice  aur Press Council ke chairman Markandey Katju ne Madras High Court ke ek judge ki niyukti ke hawala se nyayapalika me jari brashtachar ki tasveer pesh ki hai

Press Council of India chairman has made direct charges against an acting Chief Justice of the Madras High Court accusinn him of overlooking sufficient evidence of graft and elevating him as an additional judge of the High Court

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Host: In July 2014, former Supreme Court judge, Justice Markandey Katju, alleged in a blog post that the collegium had appointed a judge under pressure from the UPA government. The judge in question was none other than Justice Ashok Kumar, the controversial Madras High Court judge. The same judge whose appointment and continuation Divan had contested. Katju’s revelation laid bare the problems of the collegium system to the public.

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A media frenzy followed. This gave the new full majority NDA government led by Narendra Modi an opportunity to exploit. As eminent jurists, including Anil Divan, had warned, this was the government playing off public sentiment to meddle with judicial independence. Would this government go down the Indira Gandhi route and meddle with judges? Or would the judiciary stay insulated from political action? Since the 1970s, both Anil Divan and Fali Nariman had been part of many historic constitutional battles. Now, in the twilight of their careers, both men sprang into action again.

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Join us in the next episode of Friend of the Court as we follow belligerent lawyers, and rousing arguments in a fight for the life of the judiciary itself. Until then, I am your host Host Karnad.