From Bench to Bar, the Executive Tightens Its Grip on Justice

The independence of the judiciary and the profession of lawyers is being slowly but surely compromised.

The political executive has been stalling the appointment of judges by disregarding the recommendations made by the collegium of judges of the Supreme Court (no less). There are well-known, documented cases of the political executive taking no action on recommendations made by the collegium of judges, rendering the agreed Memorandum of Procedure nothing but a scrap of paper. Where appointments are made, they are delayed, thereby adversely impacting the seniority of some judges while favouring others. For the present purposes, it is not necessary to revisit these lanes and bye-lanes.

However, what is equally, if not more disconcerting is the view taken by the political executive that reiteration of recommendations by the collegium is meaningless. The Memorandum of Procedure, based on judgments of the Supreme Court, does not give room to the political executive to effectively reject candidates for judgeship when reiterated by the collegium. Yet, this is happening with not a squeak from the collegium.

What are we to make of this? In my view, if the judiciary is unable to assert its independence, we might as well give up hope.

Dominance of the judiciary by the political executive has delayed justice delivery with the result that violent crimes appear to have increased. These are reported daily in newspapers, and TV channels hype up these cases and convict the suspects even before the police complete their investigation. So much for speedy justice.

But there are those who commit a crime and get away with it. They know the right people in the right places. Even the TV channels cannot touch them.

A judge of a prestigious high court is facing an impeachment motion signed by the requisite number of parliamentarians. The allegation against him is of delivering hate speech. Effective and meaningful steps have not been taken on the impeachment motion for over six months. How does one explain the inaction? Is it deliberate?

On the other hand, another judge of another high court, in whose official residence large stacks of currency notes were found, is expected to face a fast-track impeachment process. Why are the applicable standards so different?

Incidentally, nobody knows where the currency came from and where it has disappeared – two extremely vital questions. It is not difficult to find out, but who cares. One judge has the right contacts, the other doesn't.

These are instances involving judges, but there are many more involving lay persons and many of them have got away without the investigation being completed or placed on the back burner. This is commonly referred to as the ‘washing machine syndrome’. It doesn’t matter if the washing machine is front loading or top loading – all are automatic with fuzzy logic.

While some sort of fear seems to be percolating the sinews of the judiciary, an attack has been launched on the practitioners of the legal profession. Lawyers are now the target of investigations for opinions given by them. Two recent incidents have shaken up the lawyer community. But the attack started a couple of years ago.

A firm established by two lawyers called Legal Initiative for Forest and Environment (LIFE) specialising in environmental issues was among the first to take the flak. LIFE is the 2021 recipient of the Right Livelihood Award or alternative Nobel Prize for its work on environmental protection. It has given opinions on environmental issues and argued cases against influential lobbies. This attracted the attention of the powers that be and ever since then the lawyers have found themselves in quicksand. They are being hounded by the Income Tax Department and by the Central Bureau of Investigation. Like some suspected criminals, they have to take permission of the high court to travel abroad to attend conferences and leave a security deposit ensuring their return. So much for the independence of lawyers.

The issue of the independence of lawyers has been further escalated by the Enforcement Directorate (ED), which recently issued summons to two respected senior advocates of the Supreme Court to appear with all documents. Why? Because the ED didn’t quite like the opinion given by them to their clients.

It is frequently said in the legal fraternity that the bench and the bar are two wheels of a chariot. One wheel, the bench or the judiciary, is already being pressurised, and now the executive is targeting the other wheel, the bar. Fortunately, several bar associations/bodies across the country took up the “deeply disquieting development” of the ED summons to senior advocates with the Chief Justice of India and better sense prevailed on the ED and the summons was withdrawn. But the chilling effect remains.

That is not yet the end of the matter. The ED can still issue summons to lawyers with the permission of the director of the ED. What are the circumstances in which permission can be granted? Are there any parameters for exercise of discretion by the director? As things stand today, in the absence of clearly defined parameters, summons can again be arbitrarily issued to the two senior advocates with the fig leaf imprimatur of the director. The assault on the independence of the lawyers can still continue, since no rule of law checks have been laid down by the director in exercise of his power.

These developments have compelled the Supreme Court to take suo motu cognisance of the shenanigans of the ED.

Meanwhile the European Committee on Legal Co-operation has prepared a Council of Europe Convention for the Protection of the Profession of Lawyer. This has not yet come into force, but many of its provisions would be extremely helpful in guiding and ensuring the independence of the legal profession. It's time the fraternity of lawyers takes steps to protect its interests as well as those of its clients, whether they are innocent or guilty.

Will the bar associations/bodies counterattack and take the battle to the executive? If they don't, all is lost. More importantly, having taken suo motu notice of the assault, will the Supreme Court uphold the independence of the legal profession, particularly when it is hard pressed to uphold the independence of the judiciary? Will the chariot continue to have its wheels?

Madan B. Lokur is a judge of the Supreme Court of Fiji. He is a former judge of the Supreme Court of India.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

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