PUCL Flags ‘Threat’ to Judiciary, Urges Public to Resist Attacks on Collegium

Human rights organisation People’s Union for Civil Liberties (PUCL) has flagged the “threat” to judicial independence and called for resisting the Narendra Modi government’s “attempt to discredit and undermine” it.

In a statement issued on Tuesday, PUCL said that the “drumbeats against the judiciary, the only institution which is not totally within the government’s control, have become louder” referring to Union law minister Kiren Rijiju’s “first salvo” against the collegium system terming it “opaque”. “Then courts were excoriated (rightly so) for not being representative institutions in terms of caste background.”

PUCL also mentioned vice-president Jagdeep Dhankhar’s statement criticising the Supreme Court’s (SC) decision in Kesavananda Bharati v State of Kerala as setting a “bad precedent”.

Rijiju has “again upped the ante” by writing to the Chief Justice of India (CJI) on January 16 “asserting” that the executive should be represented in a ‘search–cum–evaluation committee for the appointment of Judges to the Supreme Court”.

“This latest demand flies in the face of the law laid down by the Supreme Court on how Judges are to be appointed keeping in mind the question of the independence of the judiciary,” the PUCL said.

Terming Rijiju’s statements in the last few months as a “threat to the independent functioning” of the SC, PUCL said that his “retort on undue delay in appointment of Judges is a warning of what is coming and ominous”.

“The government has made clear that it views PILs seeking accountability from the government as well as bail petitions as irritants and has gratuitously advised the Supreme Court not to hear bail petitions or ‘frivolous PILs’,” the organisation said adding that he has “made no secret of the government’s desire to control judicial appointments”

Rijiju is also being “disingenuous by disowning the responsibility of the Central government in delayed judicial appointments by sitting on recommended elevations reiterated by the Collegium”, it added.

Referring to Dhankar’s statement criticising the SC for striking down the National Judicial Appointment Commission in 2015 as undoing the will of the people and stating that “the world does not know any such instance”, the PUCL said it has “only added to atmosphere of concern”.

“The strident attacks on the judiciary by the Union law minister is clearly part of the Central government’s strategy to undermine and discredit the judiciary and to accept the primacy of the Central government’s role not just in appointment of Judges but verily in influencing the way the judiciary functions. The aim is to neutralise and subvert the independent role envisaged by the Constitution for constitutional courts.”

An independent judiciary is the “cornerstone of a constitutional democracy because it upholds the Constitution, its basic structure and system of checks and balances, protects the Fundamental Rights of citizens and ensures through judicial review that the laws passed by Parliament and the actions and policies of the executive are in harmony with Constitutional principles”.

PUCL stressed the critical role an independent judiciary should play in the present period, when the “ruling party has used its brute majority in Parliament to ram through critical laws with hardly any discussion, within or outside Parliament, many of which have been constitutionally challenged before the SC”.

PULC pointed to the “systematic  subversion” of  other important constitutional institutions which are meant to play an independent role as monitors of democracy such as the Election Commission, NHRC, CBI, ED and Income Tax Department before the attacks on judiciary.

PUCL criticised the collegium’s “lack of transparency and accountability”, which have resulted in the “preservation of caste, class, gender and community privileges, nepotism and favouritism, and the lack of capability, fairness, efficiency and integrity among Judges” and called for urgent reforms.

However, Rijiju, who is “merely echoing” the government’s thinking, doesn’t appear to be to “streamline the process of judicial appointments pending creating a broader consensus on creating an independent judicial appointments body”, PUCL said.

The law ministry should have taken the lead to initiate public discussion and build consensus on a clear, objective, rule-based criteria for selection of candidates and appointment of Judges, transparency, accountability, and inclusion of diverse communities in India, PUCL said.

Rather the Centre aims to “rein in what appears to be a less-submissive Supreme Court, which under CJIs [NV] Ramana, UU Lalit and now YV Chandrachud is comparatively more liberty sensitive, fundamental rights affirming and constitutionally responsive court than the previous courts under CJIs Dipak Misra, Ranjan Gogoi and SA Bobde.”

Pointing to the advantages of the collegium system despite the “shortcomings”, PUCL said that it was the “product of historical circumstances when the Supreme Court had to confront brazen attempts by the executive to hijack the judicial appointment process by packing the court with its nominees”.

Despite the “serious shortcomings” of the collegium system, there are Judges High Courts (HCs) and the Supreme Court who have a sense of fidelity to the values of the Constitution and to their oath to ‘maintain true faith and allegiance to the Constitution’.”
“Be it with respect to matters concerning bail in UAPA cases or the hijab ban matter in the Supreme Court, some Judges have stood in defence of the Constitution even if it meant opposing the government’s will.”

The Union government has also “consciously demonstrated that it was not averse to penalising those Judges who have shown independent thinking or whose values are not aligned with the government,” PUCL said mentioning the transfer of Justice Rajiv Shakder from Delhi HC to Madras HC (2016), Justice Abhay Thipsay from Bombay HC to Allahabad HC (2016) and denial of elevation of Justice Jayant Patel as CJ, leading to his resignation

Since September 28, 2022, the Central government has “remained mute” about the collegium’s resolution to transfer Orissa HC Chief Justice S. Muralidhar as CJ of the Madras HC. Justice Muralidhar was earlier transferred to the Punjab HC from Delhi HC immediately after he had directed the Delhi Police to take a decision on filing a FIR against Union minister Anurag Thakur and BJP leaders Parvesh Verma, Kapil Mishra and Abhay Verma for making allegedly inflammatory speeches, PUCL said. “As of date, the Centre has remained silent on its response.”

Since November 28, 2022, the Centre has been “sitting on files of most of the 20 names proposed (some of whose names were reiterated thus becoming binding) for elevation to various HCs. “Clearly these files have crossed the four-month rule as laid down by a three-Judge Bench of the Supreme Court.”

The executive in its “pursuit of absolute power” is seeking to “delegitimise” and pave the way for the “destruction of the collegium system. “It is no coincidence that these attacks are taking place during the tenure of Chief Justice YV Chandrachud, who is expected to fulfil his oath to ‘bear true faith and allegiance to the Constitution’ even at the cost of going against the will of the executive.”

Warning of an “authoritarian regime which will be totally unchecked by any constitutional restraints” if the executive succeeds in its aims, PUCL said that citizens must understand that the issue of appointment of Judges is “not a private affair between Judges and the executive but an issue with grave consequences” to them in terms of preserving and protecting the Constitution and ensuring the survival of constitutional democracy.

Reminding the public that the judiciary’s autonomy and independence are at “stake”, PUCL said, “Constitutionally minded citizens and civil society groups need to stand up to collectively raise their voices and demand that the Central government and its functionaries stop the public attacks on the collegium and the judiciary, abide by the spirit of the Constitution and respect its values, ethos and proprieties.”