Judiciary-government bonhomie a death knell for democracy, says Top judge

Any "bonhomie" between the judiciary and the government would sound the "death knell" for democracy, senior-most Supreme Court Judge Justice J Chelameswar has told the Chief Justice of India and urged him to convene a full court to deal with the alleged executive interference in judiciary.

In an unprecedent letter to the Chief Justice, copies of which were also sent to 22 other top court judges on March 21, Justice Chelameswar has questioned the probe initiated by Karnataka High Court Chief Justice Dinesh Maheshwari against District and Sessions Judge Krishna Bhat at the request of the Union Ministry of Law and Justice, despite his name being recommended for elevation twice by the collegium.

Efforts to get a response on the letter from the office of Chief Justice Dipak Misra did not fructify, while several legal luminaries, when contacted, chose not to comment on the matter.

Justice Chelameswar, who had held the unprecedented January 12 press conference along with three other senior judges raising issues including the allocation of cases by the Chief Justice, expressed concern over the executive directly asking the Karnataka Chief Justice to conduct a probe against Judge Bhat, saying this was done even after his name was recommended twice for judgeship by the top court collegium.

In 2016, then Chief Justice of India TS Thakur had asked then High Court chief justice SK Mukherjee to hold an inquiry against Judge Bhat on certain allegations levelled by a subordinate woman judicial officer. After the probe had given him a clean chit, Judeg Bhat's name was recommended by the collegium for elevation.

"Someone from Bangalore has already beaten us in the race to the bottom. The Chief Justice of Karnataka High Court is more than willing to do the Executive bidding, behind our back," Justice Chelameswar wrote in his six-page letter.

Raising the issue of judicial independence, he said, "We, the judges of the Supreme Court of India, are being accused of ceding our independence and our institutional integrity to the Executive's incremental encroachment.

"The executive is always impatient, and brooks no disobedience even of the judiciary if it can. Attempts were always made to treat the Chief Justices as the Departmental Heads in the Secretariat. So much for our 'independence and pre-eminence' as a distinct State organ’’.

The letter said: "Let us also not forget that the bonhomie between the judiciary and the government in any State sounds the death knell to democracy. We both are mutual watchdogs, so to say, no mutual admirers, much less constitutional cohorts".

Justice Chelameswar referred to the "unhappy experience" where the Government sat tight over the files even after the collegium recommends names for appointment in the higher judiciary.

"For some time, our unhappy experience has been that the government's accepting our recommendations is an exception and sitting on them is the norm. 'Inconvenient' but able judges or judges to be are being bypassed through this route," he alleged.

The top court judge, who demits office on June 22, took serious note of the communication between the Karnataka High Court chief justice and the executive saying, "the role of the High Court ceases with its recommendation".

He said that any correspondence, clarificatory or otherwise, has to be between the executive and the Supreme Court.

The top court judge also said the day may not be "far off" when the executive would directly communicate with the High Court about pending cases and ask what orders are to be passed.

While referring to Judge Bhat's case, he said, "To my mind, I could recollect no instance from the past, of the executive bypassing the Supreme Court, more particularly while its recommendations are pending, to look into the allegations already falsified and conclusively rejected by us.

"Asking the High Court to re-evaluate our recommendation in this matter has to be deemed improper and contumacious’’.

Beseeching the Chief Justice to take up the issue of executive interference in judiciary by convening a full court on the judicial side, he said this was necessary in order to ensure that the institution (Supreme Court) remained relevant under the scheme of the Constitution.

He also referred to a past instance when the top court had taken serious note of a direct communication of the then Law Minister to the High Courts on the issue of judges' transfer which had finally led to the judgement in first judges case in 1981. Later, the collegium had assumed power with regard to judges' appointment in the higher judiciary.