Indira Gandhi’s and Narendra Modi’s common pursuit: A pliant judiciary
Indira Gandhi considered an Independent judiciary a thorn in her flesh, and its independence as its fang. She wanted to defame it so that she could rule like an absolute Monarch free from any constraint. She even found the Constitution as an undesirable impediment and wanted to mould it to make it subservient to her imperial will. To her even the Rajya Sabha appeared as a nuisance.
When the Supreme Court rejected her government’s claim that Parliament possessed unlimited power to amend the Constitution (by a majority of one in a 13 member bench, and held that Parliament could amend any part of the Constitution including the fundamental rights but not the ‘basic features’ of the constitution she retaliated by superseding Justice Shelat, Justice Hegde and Justice Grover for their audacity to stand in her way and appointed Justice A.N .Ray , the fourth person in order of seniority as the Chief Justice of India. The seven judges in the case (Keshavanand Bharti ,1973) saved India and Indian democracy. By superseding them , she gave a stern warning to the Judges to either pay heed to her imperial wishes or pay the price. It did yield the desired result during the emergency when the scared Supreme Court held that during the emergency even if a policeman killed someone for personal reason or some one was detained or tortured the Courts could not entertain his writ petition against violation of his right to life or personal liberty. The only judge Mr H. R. Khanna, who gave a dissenting judgment was not made the Chief Justice of India when his turn came .
In 1993, the absolute power enjoyed by the Union Government to appoint the judges of the Supreme Court and the High Courts and transfer the judges of the. High Courts (which had been barefacedly misused) was taken away by the apex court and vested in a Collegium consisting of the Chief Justice of India and three senior most judges of the apex court. Modi government has amended the Constitution to create the National Judicial Appointment Commission consisting of the Chief Justice of India and two senior most judges of the Supreme Court, the Union Law Minister and two eminent persons to be appointed by a committee consisting of the P.M.. the CJI and the leader of the largest party in the Lok Sabha. Initially, it was provided that if the recommendation of the Collegium was referred back by the government for reconsideration, its reconsidered recommendation would be binding on the government only if it was made unanimously. Thus Modiji wanted to exercise his veto through the Law Minister. It was his ploy to ensure that nobody could be appointed to the Supreme. Court or the .High Courts without the blessing of the P.M. Due to fierce opposition, this provision had to be dropped. But dispensing with the democratic principle that in the event of a difference of opinion the opinion of the majority would prevail, it has been provided that if two members of the Commission opposed a candidate he would not be recommended for appointment. Why should two members be empowered to veto the choice of the remaining four members ? Why was the democratic principle of majority opinion prevailing has been dispensed with ? Why has the practice of giving a casting vote to the Chairperson in the event of there being a tie in the six -member Commission not been included ?
The answer lies in the imperial mindset of Narendra Modi. Even under the Collegium system , he played a dirty trick on Gopal Subramaniam by creating a situation in which an honourable and dignified person would withdraw his name .Out of the two names recommended by the Collegium , one was appointed in an unprecedented move and disinformation campaign launched against the other (Mr Subramaniam) making it below his dignity to continue his candidature.Consequently he withdrew his name. The language, tone and temper in which his Attorney General Mukul Rohatgi has been arguing in favour of the NJAC in the. Supreme Court undermines the prestige of the highest court of the country and appears as an act of intimidation. He offensively alleges that under the Collegium system bad appointments have been made , but fails to support it with facts. He shamelessly overlooks the sordid history of abuse of power by the Executive when it called the shots. The belligerent approach is calculated to demoralise and intimate the judiciary.In every important case involving the right and liberty of the people , the Attorney .General demands that the case should be heard by a larger bench. Indira Gandhi had amended the Constitution to make it mandatory for the Supreme Court to constitute a bench of at least seven judges to hear cases involving the constitutionality of a law. Taking no chances, it was also stipulated that a law could be held unconstitutional only if two thirds of the bench declared it so ( by 42 nd Amendment of the Constitution ).
Indira Gandhi’s associates wanted a committed judiciary in the name of introducing pro-people socioeconomic measures (whatever their real intent); Modi’s Law Minister has written to the Supreme Court and High Courts asking them to hold classes for judges in which they should be taught about animal rights from the book written by Maneka Gandhi. He has also written to the Bar Council of India to prescribe the book for all law students in the country. He is acting as if under Narendra Modi’s givernment the judiciary has already come under his department. In any other democracy , a Minister writing such a letter would have been sacked not only for impropriety and ignorance , but also for his boorishness.
We , the concerned people , learn a lesson only after it is too late. The issue of the independence of the judiciary is a question of life and death for us not the judges.
There would always be people to accept the exalted position of the judge of the Supreme Court and High Courts under the terms and condition laid down in the constitution, and dispense justice even if it means dispensing with justice. It is we , who would pay the price tomorrow for the indifference and neglect of today.