Justice is blind is part of the myth system. “A judge is a lawyer who is a politician who has a friend,” Judge Paul Leahy once told his clerk, Floyd Abrams. In India, Justice L. The collegium’s recommendation of Victoria Gauri’s name and her appointment to the Madras High Court within weeks have revived the debate on judicial appointments. The two-judge bench, making a distinction between ‘eligibility’ and ‘suitability’, said the contents of his alleged hate speeches were before the collegium.
Editorial | Check, don’t cross: On government’s attack on judiciary
The Supreme Court of India is a political court in the sense that it is the final arbiter of political disputes. Accordingly, the political and ideological positions of judges can influence their decisions – at least on controversial political questions. Thus, concerns about the ideological/political leanings of judges are entirely justified. Philosopher-jurist Upendra Bakshi wrote, “It is the center of political power because it can influence the agenda of political action, controlling which is really power politics.” The Court is regularly drawn into the politics of the establishment as well as the politics of the opposition. In other words, “whether the judges of the Court like it or not, understand it, care about it or not, the plain fact is that the Court is used for purely political purposes in certain situations beyond the control of the Court.” can be taken for.” ,
Evidence in the Form of Judgments and Appointments
Any number of examples can be given: The Hindutva judgment (1996) was a major boost and legitimized the ideological position of the Bharatiya Janata Party (BJP). Even then ADM Jabalpur (1976) to Indira Gandhi Govt. SR Bommai’s (1994) dismissal of the BJP governments in Madhya Pradesh, Rajasthan and Himachal Pradesh following the demolition of the Babri Masjid upheld secularism as a basic framework, a major victory for the Congress. The Rafale decision in 2018 which came ahead of the general elections in 2019 was a major political boost for the Narendra Modi government. The final verdict in the Ayodhya case (2019) also had great political significance. Similarly, even though Chief Justice of India (CJI) NV Ramana’s Pegasus Order (2021) had nothing on setting up an independent inquiry, it was hailed as a major setback for the government and a major political victory for the government. was presented in Oppose. Revision (2022) of reservation for economically weaker sections and retention of reservation for demonetisation (2023) resulted in major political victories for the BJP government. The ongoing Shiv Sena case also has political implications. At the same time, several politically sensitive matters are yet to be heard such as the Electoral Bond Scheme, the Citizenship (Amendment) Act, and the dilution of Article 370.
Editorial | A Message to Maturity: On Governors, Chief Ministers and Constitutional Limits
As the center of power in national affairs, the Supreme Court invariably gets drawn into politics. Some examples of public interest litigation, renaming of over 1,000 places, uniform divorce law, anti-conversion law, love jihad and women’s entry into mosques are examples of the use of the court for political purposes.
Governments take into account the ideological leanings of judges. On May 12, 1973, in a speech in Parliament, M. Kumaramangalam, Mrs. Gandhi’s cabinet colleague, boldly defended the appointment of the CJI (Justice AN Ray, who had superseded the three senior-most judges), when he said: What was the basic outlook of a judge to us about life… Wasn’t it right to consider all these aspects? it was not right to think in terms of what [a] More appropriate relationship between court and government? … In appointing a person as Chief Justice, I think we have to take into account his basic outlook, his outlook towards life and his politics.
Among them were judges with leftist, centrist and rightist ideological leanings. Leftist leader VR Krishna Iyer was a minister in the communist government of Kerala. Justice Baharul Islam was an elected member of the Rajya Sabha representing the Congress. He was previously appointed as a judge of the Gauhati High Court and after retirement was appointed as a judge of the Supreme Court by the Indira Gandhi government, in a rare decision. CJI Subba Rao was the opposition candidate in the presidential election. Justice Guman Mal Lodha had right-wing leanings and later won the Lok Sabha elections thrice on a BJP ticket. Justice KS Hegde also became the speaker in the Janata government. Justice Vijay Bahuguna was the Chief Minister of Uttarakhand.
Every government would like to have judges who can decide cases in its favor – this was the norm even under Congress rule. For example, Justice MH Baig was appointed on the instructions of Chief Justice Indira Gandhi, over the protests of CJI Sikri. Justice DG Palekar was appointed because of his closeness with the then law minister HR Gokhale. Justice SN Dwivedi was a relative of HN Bahuguna. CJI Sikri had serious objections to the elevation of Justice Dwivedi, who after his appointment told lawyers that he was going to the top court to overrule Golaknath (1967).
still free
But fortunately, and surprisingly, many government-appointed judges were able to assert their independence; With a few exceptions, they have been quite impressive. Some even rejected major decisions taken by the Jawaharlal Nehru and Indira Gandhi governments. In Champakam Dorayarajan (1951), the reservation policy of Madras was struck down by a majority of 7:0. In IC Golaknath (1967), the Supreme Court took away the power of Parliament to amend the Constitution and held fundamental rights to be essential for the development of human personality. In RC Cooper (1970), the apex court (10:1) set aside the historic bank nationalization decision; The privy purse was also abolished in Maharajadhiraj Madhav Rao Scindia (1971) by a majority of 9:2; In Kesavananda Bharati (1973), the Basic Structure doctrine was propounded to restrict and limit the power of Parliament to amend the Constitution. And who can forget Rajnarayan (1975), where Justice Jagmohan Lal Sinha set aside the election of the Prime Minister. Even during the Emergency, nine High Courts upheld the right of habeas corpus against illegal detention. Such harsh decisions are rarely given today.
Even in the days before the collegium, governments usually went by the recommendations of the CJI. Of the 547 appointments made between January 1, 1983, and April 10, 1993, the views of the CJI were ignored in only seven.
Lastly, who can claim that the collegium is completely independent and always recommends ideologically neutral judges? The collegium system has not improved the situation much as the government’s decision in judicial appointments is final. Since the government has a veto power despite the memorandum of procedure stating that the government will be bound to appoint a judge if its name is reiterated by the collegium, it would be better to involve the Union Law Minister. Collegium (as in many other countries) so that their views can be heard and their objections can be discussed in detail. Their views should also become a part of the minutes. If the other five judges (CJI plus four judges) are not convinced, a majority decision can be taken, and the government will have to deliberate and accept the recommendations of the Collegium in favor of the recommendations. The goal should be to eliminate encroachment, select judges and make the process more transparent.
Faizan Mustafa Faculty of Law, Aligarh Muslim University, Aligarh, Former Vice-Chancellor, NALSAR Law University, Hyderabad, Former Vice-Chancellor, National Law University, Odisha, Former President, Association of National Law Universities and Former President, Shastri Institute. of Indo-Canadian Studies