In Sua Causa: What the judiciary has done to itself
Whilst political corruption is extensively discussed in India, the corruption of the Indian judiciary is both reported less frequently by the press and discussed even less frequently by Indian voters. That’s a shame because alongside the executive and the Parliament, the judiciary is the third pillar of India’s democracy. This in-depth piece from the Caravan – a magazine which has the guts to speak its mind – details the steady erosion of ethics in the upper echelons of the Indian judiciary over the past 40 years.
It all started with Indira Gandhi: ““Indira was the worst,” a senior advocate of the Supreme Court told me recently. It is not far-fetched to imagine India’s entire legal community singing that line in unison. Indira Gandhi’s decision as prime minister to install AN Ray as the CJI in 1973—superseding the Supreme Court’s three most senior judges at the time—violated the convention of promotion by seniority that the judiciary has held dear for its entire history. The move was seen as retribution for the superseded trio’s positions in the Kesavananda Bharati case. In it, the Supreme Court, by a narrow majority of a 13-judge bench, had ruled that parliament could not pass any laws that violated the “basic structure” of the Constitution; and affirmed, for the first time, the court’s right to strike down any laws that did. Gandhi had not taken kindly to this curtailment of the government’s power.
The pernicious fruit of what Gandhi sowed arrived, most famously, with the Habeas Corpus Case, which followed her declaration of the Emergency, in 1975. Faced with the government’s use of emergency powers to detain its critics without trial, a five-judge bench headed by Ray waved away citizens’ right to appeal their detention before a court of law. Only a single judge dared to dissent.”
In the post-Indira world, through the 1980s, 90s and noughties, the judiciary fought back to entrench itself and its powers: “After the Emergency, the judiciary faced the job of restoring its fallen image. Its response, always invoking the extremes of the Emergency for justification, was the consolidation of the doctrine of judicial primacy—part of which now means that judges must be pre-eminent in the appointment process. This presumed that, if left to itself, the judiciary would automatically produce competent and independent courts…Step by step, India’s top judges arrogated to themselves more and more of the authority to select and promote their own.”
When the NDA came to power in the 2014 it did not take a genius to figure out that one of its first priorities would be to get its arms around the judiciary: “To add to the disquiet, the Rashtriya Swayamsevak Sangh, the BJP’s parent body, had long wanted to inject the judiciary with its Hindutva ideology. A draft proposal for restructuring the Indian government that was circulated at a 1998 conference of the Akhil Bharatiya Vidyarthi Parishad, the student wing of the RSS, proposed the creation of a “guru sabha” comprising sadhus and sanyasis. Among other functions, this body would act as a judicial commission, with the power to nominate and impeach judges of the Supreme Court. This was reported in 2000 by Subramanian Swamy, now a member of the BJP, in a magazine article titled “The RSS game plan.””
In 2015 the judiciary managed to see off the NDA’s attempt to replace the current collegium system followed by the Supreme Court for selecting its seniormost judges (a system where the judges choose other judges for the highest judicial posts available in the nation). But even as they were doing this, other corrupt judges were using political patronage to muscle their way to the top. It is worth reading the article to understand this process and what it means for the future of law & order in India.