P. Raman 
The Narendra Modi-Amit Shah establishment is on an all-out mobilisation of forces for bringing back the old National Judicial Appointments Commission or any other body that will ensure government control over higher judiciary. The currency haul at the Delhi High Court judge’s residence has provided them the right pretext to revive the old project.
Godi media, TV channel warriors, friendly columnists, its former attorney generals and law officers, social media warriors, ‘influencers’ and the coolies of the Bharatiya Janata Party’s (BJP’s) IT network – all are being pressed into service.
Rajya Sabha chairman Jagdeep Dhankhar and J.P. Nadda – not the Lok Sabha Speaker – have been assigned to build a consensus against the Supreme Court collegium among the allies as and, if possible, opposition parties.
Dhankhar has already discussed the need for bringing back the NJAC at a floor leaders’ meeting. He has raised a technical point to stoke the clan instinct of the political class: it was a unanimous decision of the parliament that the Supreme Court had rejected.
However, it was factually incorrect and one member had opposed it. Dhankhar also said that it concerned the “sovereignty of Parliament, supremacy of Parliament”.
The thrust of the campaign is that the cash haul at the judge’s residence has proved that the Supreme Court collegium had failed to provide a foolproof system – it is time for a united action by all parties and groups to go back to a system like NJAC. A collective move by the entire political spectrum will effectively isolate the judiciary.
The whole effort is to portray collegium as the villain of the piece. As a grant of political design, the Modi-Shah administration wants to make it an all-party endeavor if possible. However, so far, opposition leaders were non-committal at the two meetings. They said they will refer the issue to their respective parties.
Indications are that they will wait to see whether the government comes out with any convincing alternative to the present arrangement. Many in the opposition seem to be wary of Dhankhar’s gambit. Trinamool Congress’s Mahua Moitra has put it rather bluntly: it’s a clever plan to control the judiciary. Meanwhile, other leaders are waiting for a formal decision by the party.
Senior RJD MP Manoj Jha had long back said that a return to the old NJAC should be with adequate amendments so as to ensure it did not lead to government control over the judges.
From what it seems, the opposition is waiting for the government to come out with its own proposal.
For a decade, the Supreme Court remained the only structural bulwark against the spin dictator’s authoritarian project. True, the court had occasionally echoed the official line on issues like Ram temple, Rafael jets scam and a host of other issues. At the same time, it also acted decisively to strike down the electoral bonds scheme.
The judiciary acted firmly against the use of bulldozers for arbitrary justice and asked the state governments never to use it as a form of punishment. It put a break to the unrestrained misuse of PMLA against the political adversaries.
“Bail is the rule, jail an exception,” the Supreme Court had ruled. Such verdicts had greatly hampered the regime’s authoritarian project.
In fact, judiciary has been the only hurdle in the way of establishing a total authoritarian regime in Modi’s India. The judicial system, built by the constitution makers, has been so sturdy that it had, though haltingly, withstood the worst kind of intimidation and lures. Consider how all other government arms, including the statutory watchdog bodies, were emasculated over the years. In most cases, the incumbents willingly obliged.
Among these are prestigious bodies like the Reserve Bank of India (RBI), Election Commission and Comptroller Auditor General (CAG). Former RBI Governor Urjit Patel had put up some resistance but resigned when the government’s meddling became too irksome. As an academic, he had strong differences with the Prime Minister on devaluation and transfer of RBI funds to the finance ministry. After his exit, loyal bureaucrats were brought in.
The Central Information Commission, set up under RTI Act, was tamed by the same simple technique: restricting salary scales and tenure and filling positions with loyal bureaucrats.
In a letter to the then President Ram Nath Kovind, the then information commissioner Shridhar Acharyalu complained that this will give ‘perpetual powers’ to government to control the members.
He was right. The Modi-Shah duo effectively used this tested device to bring round all other statutory bodies. The preferred choice was to retain the loyal, retiring government officers, preferably the obliging types and those with RSS credentials.
This works two ways: first, the loyal ones will not create problems and second, this will also encourage other officials to behave. The Modi-Shah model has been working even in the case of highly prestigious bodies like CAG. Instead of central ministries, CAG now focuses more on opposition states.
Forget the CBI and ED which are functioning under government departments, similar strategies have worked well with institutions like Central Vigilance Commission (CVC), LokPal, University Grants Commission (UGC), National Sample Survey Office (NSSO) and prestigious bodies like Council of Scientific & Industrial Research (CSIR) and National Mission for Manuscripts (NMM).
Then there are regulatory authorities like Telecom Regulatory Authority of India (TRAI), competition commission, airports authority and electricity regulatory commission. Set up as part of economic reform, these bodies were to be headed by domain experts but the Modi regime has filled these with loyal, retired civil servants.
After establishing tight control on all other arms of the government, the only impediment in the way of the authoritarian project remains the Supreme Court.
A lawyer himself, Arun Jaitely was the one who realised this. In August 2014, NJAC was pushed within four months after Modi took over as prime minister in 2014.
NJAC was a smartly crafted piece of legislation. Headed by the CJI, the six-member panel has two other judges in it. It has all the trappings of a fair and balanced body. But it is misleading. The executive, through the hidden clauses and by way of pressures, could easily push its nominees as judges. Similarly, the government side also has enough levers to control transfers and postings.
If and when the NJAC is restored – and that is this regime’s game plan – it will give the government adequate powers to emasculate the judiciary as it did with the other statutory bodies. And a tamed judiciary will leave the field open for a total authoritarian takeover with all its rigours.
Even after the Supreme Court struck down the NJAC Act in October 2015, the Modi government continued to use every means to control judicial decisions. The first was to file a review petition which too was dismissed by the apex court in December 2018. The regime also launched a subtle campaign against the verdict.
The most ruinous strategy the Modi regime resorted to was to block and delay the appointment of the names recommended by the collegium. Lack of judges in higher judiciary delayed the cases. Last year, the number of pending cases in high courts and Supreme Court crossed 62,000.
The collegium can only recommend the names. The effective powers of appointment are with the department. The government went on picking and choosing from the recommended list and appointed its favourites while blocking others. This continued for years leading to a paralysis of the judicial system.
In September last year, the court asked the government to explain the reasons for the delay in appointment of judges. “The collegium is not a mere search committee,” the court told the government.
It released the list of the names recommended by the court and still pending with the government.
Consider how the regime repeatedly defied the apex court’s orders and its reactions.
- On November 7, 2023, Supreme Court bench chided the Centre for delaying the appointment of 19 names it had recommended. The bench asked attorney general R. Venkataramani to reply to the court by December 5, 2023.
- On November 20, again, a division bench of justice S.K. Kaul and Justice Sudhanshu Dhulia expressed concern over the pending recommendations of the collegium related to both the appointments and transfers.
- In September 2024, another bench of CJI D.Y. Chandrachud directed the Union government to furnish details of pending recommendations and the reason for not appointing judges recommended by the Collegium.
Another method successfully tried out by the Modi-Shah duo was to get around the individual judges by way of post-retirement lures. The quid pro quo method worked fairly well. Among those beneficiaries were the controversial ones like former CJI Ranjan Gogoi and Justice Arun Mishra.
Accordingly, 21% of the judges who retired in the last six years have got government assignments. Out of 28 judges who have retired in the past half decade, six have been provided with constitutional or statutory assignments.
Post-retirement assignments are not new but the present regime appears to have institutionalised it for partisan gains.
In 2013, during the UPA rule, Arun Jaitely had warned: “It is a threat to the independence of judiciary.”
What has been happening under the Modi regime is use of the provision as a quid pro quo for systematic manipulation of judgements in favour of the ruling party.