Judiciary-govt bonhomie would sound death knell for democracy: Justice Chelameswar
Any “bonhomie” between
the judiciary and the government would sound the “death knell” for democracy,
senior-most Supreme Court judge Justice J Chelameswar has told the Chief
Justice of India (CJI) and urged him to convene a full court to deal with the
alleged executive interference in judiciary. In an unprecedented
letter to the CJI, copies of which were also sent to 22 other apex court judges
on March 21, Justice Chelameswar has questioned
the probe initiated by Karnataka High Court Chief Justice Dinesh
Maheshwari against District and Sessions Judge Krishna Bhat at the request of
the Union Ministry of Law and Justice, despite his name being recommended for
elevation twice by the Collegium. Efforts to get a
response on the letter from the office of CJI Dipak Misra did not fructify,
while several legal luminaries, when contacted, chose not to comment on the
matter.
Justice Chelameswar,
who had held the unprecedented
January 12 press conference along with three other senior judges
raising issues including the allocation of cases by the CJI, expressed concern
over the executive directly asking the Karnataka Chief Justice to conduct a
probe against Bhat, saying this was done even after his name was recommended
twice for judgeship by the apex court collegium. In 2016, then Chief
Justice of India TS Thakur had asked then High Court chief justice S K
Mukherjee to hold an inquiry against Bhat on certain allegations levelled by a
subordinate woman judicial officer. After the probe had given him a clean chit,
Bhat’s name was recommended by the collegium for elevation.
“Someone from
Bangalore has already beaten us in the race to the bottom. The Chief Justice of
Karnataka High Court is more than willing to do the Executive bidding, behind
our back,” Justice Chelameswar wrote in his six-page letter. Raising the issue of
judicial independence, he said, “We, the judges of the Supreme Court of India,
are being accused of ceding our independence and our institutional integrity to
the Executive’s incremental encroachment. “The executive is
always impatient, and brooks no disobedience even of the judiciary if it can.
Attempts were always made to treat the Chief Justices as the Departmental Heads
in the Secretariat. So much for our ‘independence and pre-eminence’ as a
distinct State organ.”
The letter said: “Let
us also not forget that the bonhomie between the judiciary and the government
in any State sounds the death knell to democracy. We both are mutual watchdogs,
so to say, no mutual admirers, much less constitutional cohorts”. Justice Chelameswar
referred to the “unhappy experience” where the Government sat tight over the
files even after the Collegium recommends names for appointment in the higher
judiciary. “For some time, our
unhappy experience has been that the government’s accepting our recommendations
is an exception and sitting on them is the norm. ‘Inconvenient’ but able judges
or judges to be are being bypassed through this route,” he alleged.
The apex court judge,
who demits office on June 22, took serious note of the communication between
the Karnataka High Court chief justice and the executive saying, “the role of
the High Court ceases with its recommendation”. He said that any
correspondence, clarificatory or otherwise, has to be between the executive and
the Supreme Court. The top court judge
also said the day may not be “far off” when the executive would directly
communicate with the High Court about pending cases and ask what orders are to
be passed. While referring to
Bhat’s case, he said, “To my mind, I could recollect no instance from the past,
of the executive bypassing the Supreme Court, more particularly while its
recommendations are pending, to look into the allegations already falsified and
conclusively rejected by us. “Asking the High Court
to re-evaluate our recommendation in this matter has to be deemed improper and
contumacious.”
Beseeching the CJI to
take up the issue of executive interference in judiciary by convening a full
court on the judicial side, he said this was necessary in order to ensure that
the institution (Supreme Court) remained relevant under the scheme of the
Constitution. He also referred to a
past instance when the apex court had taken serious note of a direct
communication of the then Law Minister to the High Courts on the issue of
judges’ transfer which had finally led to the judgement in first judges case in
1981. Later, the Collegium had assumed power with regard to judges’ appointment
in the higher judiciary.
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