Former Supreme Court Justice Sanjay Kishan Kaul has been speaking out last week. In comments made in an interview, he has made two specific revelations, both involving former Chief Justice of India Dhananjay Chandrachud. Speaking in the context of his upcoming memoir ‘Without Fear or Favour’ he has said that the Supreme Court Collegium, headed by the then Chief Justice of India D Y Chandrachud, was unusually deferential towards the government and would informally seek the government's approval before placing names of judges before the Collegium (which recommends names for appointment as judges of the High Courts and the Supreme Court). He also added that this practice was not uncommon during the tenure of other Chief Justices as well.
Secondly, perhaps more damagingly, it was revealed that this same Judge had asked him to take a middle path when it came to the case challenging the powers granted to the Enforcement Directorate based on the provisions of the Prevention of Money Laundering Act.
The revelations, taken at face value, reveal a shocking level of government interference in the functioning of the judiciary, something that casts those heading the judiciary in a poor light. It was long suspected that the judiciary, instead of being the bulwark protecting the rights of the citizen against the government, in certain cases, was acting as an extension of the arm of the government. This was particularly noticeable in crunch cases involving government excesses. The PMLA case involving the alleged misuse of powers by the ED to specifically target members of the opposition was one such case.
To the layman, it was quite clear what was happening. The ED was specifically arresting, seizing assets and freezing accounts of leaders of the opposition, with such action often coming in and around crucial State elections. The AAP, the TMC and even leaders of the Congress were deliberately targeted often on flimsy grounds that didn't ultimately even stand the scrutiny of courts.
As would be the case, opposition parties turned to the judiciary for relief, but failed to get any. It wasn't this case alone. More recently, the top court refused to entertain cases challenging the Bihar and Bengal SIR; it refused to hear pleas concerning the suspension of fundamental and human rights during the abrogation of Article 370 in Kashmir, and most glaringly, it departed from laid-down precedent and actively disallowed the Maharashtra Speaker from discharging his duties at the time the BJP was seeking to unseat the Uddhav Thackeray-led government via engineering defections. Only belatedly did the Supreme Court tell the unseated chief minister that it could have come to his aid had he not resigned.
Faith in the country's judiciary has already been shaken largely due to a plethora of perplexing decisions in which the judiciary appears to have departed from its role as a constitutional check on government power, and instead acted more like an institution that has legitimised the government's questionable exercise of power and overreach. For it to regain credibility, the judiciary needs to understand that credibility comes not from observations, but from standing up for human rights, for democracy and for the people of the country when it really matters. Unfortunately, the judiciary has been found wanting. The time to act is now and not after the damage is done.
