March 25, 2013

India has now been an independent country for over 65 years. If any one were to ask me as to what has been the country’s biggest achievement during this period of six and a half decades I would unhesitatingly say : Democracy.


We have not been able to overcome poverty, illiteracy and malnutrition. But notwithstanding the intense cynicism of western scholars, India is practically the only one among the developing countries liberated from colonial rule which has remained a vibrant, vigorous multi-party democracy all these years since 1947.


True, there has been a two-year exception – the Emergency period of 1975-1977, when the Rule of Law, Freedom of Expression and such other essential attributes of democracy came under eclipse.


I hold that in June 1975, following the Allahabad High Court judgement, which not only struck down Prime Minister Smt. Gandhi’s election to the Lok Sabha as invalid, but also barred her from contesting any election for six years, a sinister bid was made by those in power to see that democracy as conceived by our constitution makers was brought to an end.


The National Herald the daily paper from New Delhi started by Pandit Nehru wrote an editorial praising the one party system in African states like Tanzania, and wrote:


The Westminster model need not be the best model, and some African states have demonstrated how the people’s voice will prevail whatever be the outward structure of democracy. By stressing the need for a strong Centre, the PM has pointed out the strength of Indian democracy. A weak Centre threatens the country’s unity, integrity, and very survival of freedom. She has posed the most important question: If the country’s freedom does not survive, how can democracy survive?


Never ever in the two centuries of British rule was the right to freedom of expression so brutally suppressed as during the 1975-77 Emergency. As many as 1,10,806 persons were put behind bars;  of these 253 were journalists.


If democracy has survived nevertheless, I would give credit mainly to two factors; firstly, the judiciary, and secondly, the electorate which in 1977 punished the Congress Party so severely that never again would any government ever dare to abuse the Emergency provisions as perversely as was done in 1975.


All prominent political leaders, MPs etc. were detained during the Emergency under a draconian law named MISA, that is, Maintenance of Internal Security Act. These included such distinguished leaders as Jaya Prakash Narayan, Morarji Desai, Chandra Shekharji and A.B. Vajpayee. In all, the number of MISA detenus was 34,988. The law laid down that no grounds were to be given to those arrested under MISA.


All MISA detenues filed Habeas Corpus petitions in their respective state High Courts. At all places, the government had raised the same objection: in an Emergency, all Fundamental Rights are suspended and so no detenu has a right to file a Habeas Corpus petition. Almost all the high courts rejected the government’s objection, and ruled in favour of the petitioners. The government not only went in appeal to the Supreme Court but actually punished the judges who had allowed the petitions. The diary I used to maintain while I was in prison records the names of nineteen judges who were transferred to other high courts because they had decided against the government!


My diary also records under the date 16 December 1975:


The Supreme Court has been hearing GOI’s appeal against the High Court Judgments in favour of MISA prisoners. This includes our case (that of four MPS who had gone to Bangalore for a Parliamentary Committee meeting but had been arrested there under MISA) also. Justice Khanna is reported to have pointed out to the Attorney General Niren De, that Article 21 of the Constitution deals with the right not only to personal liberty but also to life. Is it the stand of the Attorney General, he asked, that even if a person is killed he has no remedy because enforcement of this right also has been suspended? Niren De replied: ‘It weighs on my conscience. But that is the position in law’.


It is worth noting here that later on, most of the judges of the Supreme Court also admitted that the decision in that notorious case was wrong. Some of them publicly recanted their view. 


In 2011, the Supreme Court formally declared that the majority opinion of the Constitution Bench of this court in Additional District Magistrate Jabalpur v/s Shivakant Shukla reported in 1976 was “erroneous”, that the majority judgement “violated the fundamental rights of a large number of people in this country”, and that it was Justice Khanna whose dissenting judgement had become the law of the land.


justic-ruma-palThese days the issue most discussed in the country is corruption. There was a time when all talk of corruption was related only to the executive – politicians and bureaucrats. No one talked of corruption in the judiciary, certainly not in the higher judiciary.


Things have changed in recent years. Justice Ruma Pal herself a former Supreme Court judge, in her Tarkunde Memorial Lecture in November, 2011, spoke about “seven deadly sins” of judges. One of the seven sins mentioned was corruption.


In her lecture she said that the belief that there is nowadays corruption in the judiciary also is “as damaging for credibility in the independence of the judiciary as the act of corruption.”


Lately, a perceptible change has come about in the standards of judges selected. When Justice Ruma Pal spoke about the seven sins of Judges, she, a jurist reputed to be forthright in her articulation deliberately added a caveat to her pronouncement that she was speaking from the “safe haven of retirement.”


I often wonder how the judiciary would react today to a situation similar to that which arose in June, 1975.  Would as many as nineteen judges of High Courts muster courage to invite the wrath of the Executive by deciding in favour of MISA detenus?  I frankly doubt it. 


just-js-vermaPresently, judicial appointments and transfer of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court which is popularly known as the Collegium. The Collegium system has its genesis in a series of three judgements (1993, 1994 and 1998).  The first and second of these judgements were delivered by Justice J.S. Verma, Chief Justice of India. He himself in an interview to Frontline (Oct. 10, 2008 issue) has observed: “My 1993 judgement which holds the field, was very much misunderstood and misused. It was in that context that I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore some kind of rethink is required.”


In 2008, the Law Commission, in its 214th report, analyzing the position in various countries said: “In all other constitutions either the Executive is the sole authority to appoint judges, or the Executive appoints judges in consultation with the Chief Justice. The Indian Constitution has followed the latter method. However, the second judges case has completely eliminated and excluded the Executive.”


Quoting Justice Verma’s interview to The Frontline, the Law Commission wrote: “The Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”


We are the world’s largest democracy which naturally expects that in so far as appointments to high judicial offices are concerned there must be transparency, fairness and a merit based system.  And yet, in her Tarkunde Memorial Lecture, Justice Ruma Pal remarked that “the process of appointment of judges to the superior courts was possibly the best kept secret of the country.”


The “mystique” of the process, the small base from which the selections were made and the “secrecy and confidentially” ensured that the “process may, on occasions, make wrong appointments and, worse still, lend itself to nepotism”, she said.


An indiscreet comment or a chance rumour was enough to rule out a person’s perceived suitability for the post, she said. Friendships and obligations also sometimes colour recommendations, she added.



L.K. Advani

New Delhi

25 March, 2013