Image courtesy: The Wire
In an interview where he is sharply critical of the functioning of the Supreme Court since 2014, when Narendra Modi became Prime Minister, and particularly of former Chief Justice Ranjan Gogoi, the former Chief Justice of the Madras and Delhi High Courts has said that since 2014 the Supreme Court “practically succumbed to the executive’s control”. Justice Ajit Prakash Shah said: “All floodgates opened after CJI Thakur’s retirement”. Justice Shah said of the Supreme Court: “Over the last 8 years the judiciary is completely demoralized and under siege”.
In the same interview, Justice Shah, who is also a former Chairman of the Law Commission, sharply criticized the functioning of the Collegium System, adding: “Judges appointing judges is not a good idea … the National Judicial Commission is the best way”.
In a 50-minute interview to Karan Thapar for The Wire, which is divided into two parts, Justice Shah first discusses the functioning of Chief Justices of the Supreme Court as well as some judges of the Court during the 8 years since Mr. Modi became Prime Minister in 2014. In part two, Justice Shah discusses issues such as whether judges should be appointed on the basis of seniority or performance and ability, whether chief justices of the Supreme Court should have a fixed tenure, whether the powers of the chief justice as Master of the Roster (to decide which cases are heard or not heard, the size of the bench as well as its composition) should be diluted or amended, whether the Collegium System is the best way of choosing judges and whether the Supreme Court erred by acting in haste both to hear and then to pronounce its decision over the Bombay High Court’s ruling discharging Prof. Saibaba.
Explaining why he believes the Supreme Court has succumbed to the executive’s control during the 8 yeas Narendra Modi has been Prime Minister, Justice Shah cited four instances that lead to this conclusion. First, four chief justices in succession have avoided taking up critical matters like the Citizenship Amendment Act, abrogation of Article 370 and Electoral Bonds and, even, habeas corpus cases because these could be embarrassing to the government. Second, in critical cases to do with the treatment of migrant workers during the pandemic the Supreme Court accepted the government’s word as final. Third, in freedom of speech cases only three out of ten cases were taken up and relief granted by the Supreme Court. Fourth, whilst Mr. Ambedkar considered Article 32 the soul of the Constitution, Chief Justice Bobde publicly said he wanted to discourage people filing petitions under Article 32.
In the interview, Justice Ajit Prakash Shah spoke at length about Chief Justice Ranjan Gogoi citing five different criticisms of his functioning as Chief Justice. First, “the absolute disregard of conflict of interest” when he heard his own case in the sexual harassment matter. “All principles of natural justice were broken” in the process. This was “very disturbing”.
Second, “Justice Gogoi was obsessed with secrecy and asked for information to be submitted to the Court in sealed covers”. This happened in the National Register of Citizens case, the Rafale case and the Electoral Bonds case. This adversely affected the quality of justice meted out by Justice Gogoi.
Third, in handling habeas corpus petitions, which concern the right to life, Justice Gogoi drove “a coach-and-four through the centuries-old established law on habeas corpus”.
Fourth, under Justice Gogoi “judicial evasion” grew because he deliberately chose not to hear important cases thus leading many to believe that he was side-stepping them because these cases could embarrass the government.
Finally, Justice Shah was very critical of Justice Gogoi’s acceptance of appointment as a Rajya Sabha MP by the government. Asked who he blamed more – the government for offering this job, in specific contradiction of the Law Commission’s position and Arun Jaitley’s well-known stand, or the Chief Justice for accepting – Justice Shah said he blamed the Chief Justice.
Although Justice Shah refused to answer a question asking him what opinion he has finally formed of Justice Gogoi as Chief Justice, saying he did not want to be personal but he has placed the facts in front of the people, he did say that he had analyzed the Chief Justices of the Modi-era (about which he also has written a lengthy essay in The Hindu) because: “The CJI occupies a unique position … his role is critical when it comes to protecting the rights of citizens”.
Of all the subjects covered in part two of the interview I shall only give you details about what Justice Shah has said about the Collegium System. He said: “Judges appointing judges is not a good idea … the National Judicial Commission is the best way”.
However, Justice Shah said it would need a constitutional amendment to move away from the Collegium System to the National Judicial Commission. Meanwhile, two aspects of the Collegium System need to be immediately improved. He called them flaws. The first is its opacity. The second is the lack of accountability.
I will leave you to see the interview to find out what Justice Shah said about all the other subjects covered in part two.
He also has a lot more to say about the functioning of the Supreme Court, its chief justices and judges during Modi-era which I have not covered here. Again, please look at the interview for this. In particular he is very critical of Justice Arun Mishra and Justice M. R. Shah for their sycophantic showering of praise on the Prime Minister.
Here is the link: