The Modi Years: Have the last five years been the most turbulent for the Indian judiciary?

• Government has picked fights with the Collegium over individual appointments
  
• Attempt to reform appointments process was struck down by the Supreme Court
• Chief Justice Dipak Misra’s tenure saw unprecedented dissent from judges
  

Judiciary was hardly a topic of discussion during the run up to the 2014 Lok Sabha elections. But in over four years since Narendra Modi took over as Prime Minister with a majority in Lok Sabha, the Supreme Court has gone through perhaps its most tumultuous period since the days of the Emergency in the 1970s. At the heart of the debate was the question of judicial independence, with a string of controversies that began in 2014 culminating in the unprecedented press conference by four senior judges in January, 2018.

Judicial appointments

Soon after coming to power, the Modi government signaled its intentions regarding the appointment of judges to the Supreme Court. In June, 2014, senior advocate Gopal Subramanium was supposed to be elevated to the Supreme Court bench. Instead, an intelligence report with uncharitable comments on Subramanium was leaked. After a highly charged battle that involved acerbic statements in the public forum, Subramanium finally withdrew from the process.

While the government denied any role in what transpired, the speculation was that the Modi government did not like that fact that someone who was the amicus curiae in the Sohrabuddin encounter case in Gujarat was about to rise to the bench. BJP president Amit Shah was one of the accused in the case before he was discharged in December, 2014.

Four years later, a judge who had given an unfavourable order that cost BJP a chance at forming the government in Uttarakhand had to face similar resistance. In January 2018, the Supreme Court collegium recommended Uttarakhand High Court Chief Justice KM Joseph for elevation. The Centre first sat on this file.

Then, in April, it expressed its reservations at the appointment, stating that the parent court Joseph came from, the Kerala High Court, was already well represented in the apex court. It wanted the collegium, led by Chief Justice Dipak Misra, to reconsider the appointment. Instead of putting its foot down categorically, it took the collegium three sittings to reiterate Joseph’s appointment even as Justice Indu Malhotra, who was recommended along with Joseph, took oath in April. But the Centre had its way as the reconsideration came with two other recommendations, leading to KM Joseph losing his seniority in the Supreme Court.

In stark contrast, the elevation of four other judges in November was cleared in a record time of three days. This included Justice Hemant Gupta, against whom allegations of money laundering were made a year earlier. Reports suggested that the Congress was even thinking of an impeachment motion against Gupta.

There was also the case of Justice Jayant Patel, who resigned in September after he was transferred abruptly from the Karnataka High Court, where he was poised to become the chief justice. In all these cases, what emerged was a divided Supreme Court collegium.

National Judicial Appointments Commission

In August, 2014, in the first Parliament session after Modi came to power, the Parliament passed the National Judicial Appointments Commission Act through the 99th Amendment to the Constitution. The Commission, consisting of representatives from the judiciary, legislature and executive, was set to replace the collegium system of appointments, in which judges appoint other judges. This was perhaps the most significant judicial reform since the collegium system came into being in the early 1990s.

The government was able to garner support for the law in both houses of Parliament. But this victory did not last long. The law was challenged in the Supreme Court, which struck it down citing breach of judicial independence in October, 2015.

Following this, there was no further attempt was made to come up with a fresh law. The opaque process of judges appointing other judges continues to date.

Suicide note

While the judiciary and the Centre were locked in a battle of independence, the curious case of a suicide note by former Arunachal Pradesh Chief Minister Kalikho Pul rattled the precincts of the Supreme Court in early 2017. On February 17, his wife Dangwimsai Pul wrote a letter to the then Chief Justice JS Khehar demanding a CBI probe into her husband’s suicide. Kalikho pull died in August 2016 after the Supreme Court struck down his appointment as chief minister. A Congress rebel, he had taken then support of other rebels and legislators from the Bharatiya Janata Party to form the government in 2016. In the alleged suicide note, Pul claimed bribes were sought from him for a favourable decision on his government and named several politicians and Supreme Court judges.

Instead of taking an administrative decision on the letter which named Supreme Court judges, the wife’s letter was converted into a petition for judicial hearing. Dangwimsai Pul withdrew the letter, stating that such a proceeding will exhaust her remedies and that she wanted to write to the then Vice President Hamid Ansari for action. She chose to write to Ansari as the then President Pranab Mukherjee’s name was also mentioned in the note. Nothing moved and the alleged note was eventually buried.

Chief Justice Dipak Misra

Perhaps the important phase of the last four-and-a-half years in the judiciary was the tenure of Chief Justice Dipak Misra, who took over the judiciary’s top post in October, 2017.

In September 2017, the Central Bureau of Investigation named former Odisha High Court judge IM Qudussi in a first information report in what has been called the “medical college scam”. He was arrested, then released on bail. There were allegations that attempts were made to bribe Supreme Court judges for orders favouring certain medical colleges on approvals from the Medical Council of India.

This led to a public interest litigation in November, which came up before the second senior-most judge J Chelameswar. The bench directed the matter to be placed before a five-judge bench. However, Misra put together a larger bench and struck this order down, asserting his position as the master of the roster. Two petitions with similar prayers for investigations were dismissed with heavy costs imposed on the petitioners.

While this was happening, a case that would lead to open revolt by several judges came up before the Supreme Court. A petition demanding an investigation into the death of former Maharashtra judge BH Loya, who was at the time of his death handling the Sohrabuddin fake encounter case, led to the press conference that split the court right down the middle.

On January 12, judges Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph addressed what is still known as just “the press conference”, an unprecedented occasion in which top judges were directly addressing the media, accusing the chief justice of failing to uphold the independence of the Supreme Court.

Two important points were raised. The first was a question over the memorandum of procedures for judges’ appointments. The judges questioned the rationale of a bench asking for the memorandum to be finalised when this had already been completed in March 2017.

The second was the question of assigning cases to benches, which is the chief justice’s role as master of the roster. The letter said cases had been assigned by going against convention. When asked if the assignment problem involved the allocation of the petition seeking an investigation into Loya’s death, Gogoi answered in the affirmative.

While the press conference did lead to a portfolio-based roster system for assigning cases, the Loya case was eventually dismissed in April by a bench led by Misra, who retired in October, 2018.

Misra also had to face the prospects of an impeachment motion in Parliament when the Congress gave a notice to the Rajya Sabha chairman Venkaiah Naidu in April after its attempts to stall the hearing of the Ram Mandir-Ayodhya case failed. Naidu refused to admit the notice, and thereby avoiding an embarrassment for Misra, who would have been the first chief justice in the history of independent India to face an impeachment motion. He retired in October, 2018, delivering a slew of judgements that included the striking down of Section 377, allowing entry of menstruating women into Sabarimala and upholding Aadhaar.

As Modi’s tenure draws to a close, the most crucial development is likely to involve how the Supreme Court handles the Ayodhya matter. Towards the end of 2018, BJP and Rastriya Swayamsevak Sangh leaders have sought early conclusion of the case, but the Supreme Court has refused to entertain demands for a quick hearing, meaning it is unlikely to conclude before elections in 2019.

Read more:

From impeachment motion to internal rift, 2018 was a year of tumult for India’s judiciary

The greatest enemy of India’s judiciary isn’t the government but its own secretive system

This article is part of The Modi Years series which recaps the major milestones, controversies and policies of the BJP government.