Men, Matters & Memories
M L Kotru
I am not a lawyer which is not to say that I don’t know where my liberty ends. Have, usually for the last six decades tried not to tangle with law. Not getting too close to its nose which, again, does not mean I am unaware of the outer limit, call it the Lakshman-rekha, beyond which I, or, any law abiding citizen is not expected to go.
That was the first lesson you were taught when you embarked on a journalistic career, more importantly, when, like most reporters some six decades ago, your ability was tested out on the crime beat which not unexpectedly involved a daily round of the “kacchehri” beat. This last part of the job brought you into contact with courts of law, lawyers, why, even with criminals and their prosecutors.
You would one day see a humble looking lawyer of the Radhaswami sect tearing into high profile lawyers representing the Chief Minister of a State or even as big a money-bag of the day, as Ramakrishna Dalmia. And the next it would be a top criminal lawyer demolishing a most well crafted case against someone accused of having committed murder. Say, for instance, the Kairon murder case, involving the killing of the former Punjab Chief Minister or the defamation case which followed it.
Mrs. Indira Gandhi’s ill-famous assertion that a committed judiciary, apart from a committed bureaucracy, may have been roundly condemned over the years, and rightly so, but somehow for reasons best known to the dramatis personae the executive has somehow rarely avoided viewing the judiciary in an adversarial role. Some four decades ago at the silver jubilee celebrations of the Indian Institute of Law in Delhi Indira Gandhi, Former Chief Justices Y.Y. Chandrachud and Bhagwate (then a judge of the Supreme Court) did some soul searching on the issue that even as the executive, judiciary and the legislature recognized the failure of law to discharge its role to perfection, the hard fact of life was that the voice of vested interests had orchestral resonance which drowned the cry (particularly of the weak) for justice.
Even the first Prime Minister of India had many years ago felt impelled to offer to remove the misunderstanding that he was not sufficiently respectful of law. To remove which he had hoped to ensure that nothing happened over those early years, crowded with constitutional history, for the men of law to forfeit the people’s trust. Contrary to her father’s concerns his daughter had stated at the same jubilee celebrations that legal investigation and writing had tended to concern itself mainly with the individual’s entitlement to protection against the State.
Mrs. Gandhi having at one time observed that it was her right to pick committed judges just as President Roosevelt had asserted a similar view, it is understandable that she had found it disturbing that there were attempts to use courts for political ends and to obtain judgments which instead of interpreting the law as it stood, expostulated on what it should be.
Nothing much seems to have changed between then and now. Behind the battle of words between the executive (Prime Minister) and the judiciary lies the stark fact that the Executive wants the Judiciary to function in its own image. If it had been a matter of faith and tactic with Indira Gandhi that judges must read the Constitution the way she wanted to. She indeed had never tried to hide her contempt for “pontificating” judges.
She made her start with supersession of three judges of the Supreme Court. A Constitutional amendment was not too distant to reach. Like, say, Mr. Narendra Modi deciding to bend the law to get his man in a commanding position in his inner court, even when legally he was barred from doing so. An ordinance was issued and later the law altered.
Mr. Modi’s Law Minister, like Mrs. Gandhi’s Mohan Kumaramangalam, H. R. Gokhale, etc., was only too ready and willing to act. As he was subsequently in reviving the bill to do some course correction in the methodology of selecting judges of the Supreme Court. The formation of a Judicial Commission to select Supreme Court had been acoming for long and what had stalled it was whose should be the last say in the matter.
If you went by Mrs. Gandhi prescription it was the Government’s prerogative to name judges to the highest court in the land. It didn’t matter to her if that went against the spirit of the Constitution. The collegium system, with Chief Justice of the Supreme Court assisted by three most senior colleagues, gave the judiciary due weightage. But the wisemen felt it had not worked. So the UPA Government’s effervescent Kapil Sibal sought out a solution : a Judicial Commission it would be. The UPA fell before Sibal could sell it to Parliament and Ravi Shankar Prasad, Modi’s Law Minister, took it up in a manner that ended up with the Executive having the final say even when the Supreme Court was represented on the commission by three judges.
Minister Prasad’s contention that legal luminaries had been consulted prior to his bringing the legislation in this regard before Parliament remains contradicted by most of the eight or nine jurists, notably Fali Nariman, the country’s most illustrious jurists. The Law Minister obviously had his own priorities and not stating the nature or the result of his consultations with the jurists, as claimed by him, would not have deterred him.
Like it or not, it will be Mr. Modi’s call to name the future judges unless the Government reverses the position it took in Parliament to get the necessary legislation passed. The situation looks fraught with danger to the future of the Court as the nation’s last court of appeal. The alarm bell was to my mind rung by Mr. Mukul Rohtagi, the senior lawyer picked up by the Modi Government to serve as the Attorney General of India, the most senior of government law officers.
Mr. Rohtagi, who obviously was present at last week’s farewell by the Supreme Court Bar to Chief Justice Lodha, made the startling suggestion to the guest of honour to be ready to take up a fresh assignment with the government. This, when Justice Lodha had spoken up against Chief Justices or Judges of the Supreme Court taking up jobs soon after relinquishing their high offices. I don’t know what prompted Rohtagi to make the unfortunate suggestion after Justice Lodha’s views on the issue were known and had already set off a debate. Justice Lodha has even questioned the wisdom of his predecessor, Justice Sathasivam accepting the position of Governor of Kerala within months of his retirement as Chief Justice of the Supreme Court.
Not very sure where exactly the attorney generals nose begins, I shall in all humility refrain from reaching out further. As I said, at the beginning my liberty ends wherever anyone else’s nose begins. Law, as you know, is known to be an ass.
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