Congress’s Skirmishes over Indian Judicial System…

Concept note: -

Judiciary plays a significant role as a wing of democracy which helps in sustaining the regulation of
law and order along with executive and legislative institutions. Undoubtedly, Judiciary has a unique
stand and plays a crucial role which is considered as lenders last resort (for justice). As leaning on
courts and judicial system for the regulation and controlling the policies, administration flaws,
controversies creates by political action, which is the significant step in post-colonial world. The
judicial system can be studies under various aspects as the notion of constitutionalism by which it
affirms that the provisions of political matters in the constitution that allow the courts to act as every
political discourse as a constitutional one. As Werneck Vianna (2007) states that the litigation boom is
worldwide phenomenon which occurs in many democratic countries because of increasing gap and
trespasses over other’s jurisdiction between the representatives and those represented. 1

Unlike to British Judiciary, Indian Judiciary have a special power to review which may frequently
used by the courts in the matters of- speech & expression, social issues, trade and finance matters,
public policies related to health, education, and other significant issues where it mostly take into its
considerations. As many political theorist and legal experts believe that is a mechanism which reflects
the supremacy of the constitution and universality of rights and laws. The interpretation of law is the
absolute provisio of the courts which in the words of Upendra Baxi, in Indian context, that Supreme
Court of India is not just the court of ‘last Legal recourse’ rather it is more than that as court of ‘last
Political recourse’.

Indian Judicial System: - a theoretical excursion

In India, judiciary was born in the year 1950 with a new creation after infringing its relations with the
colonial powers. The Constitution makers were unaware for what to do with the judiciary as how its
structure should like-either same as the colonial one or to come up with a rejuvenated structure. The
Indian judiciary had assigned an important duty to interpret and enforce the laws and provision of the
constitution which the constitution permits the existence. As the legal Constitutionalist proclaims it as
the expansion of the power of judges by which judges widened the definition of the rights held to be
constitutionally ‘justifiable’, not only widen the working arena for judges rather it also creates a sort
of some resentment over other institutions after courts practicing this licensed permission to intervene.
In the words of Judith Shklar, ‘politics’ is regarded not only as something apart from law, but as
inferior to law. While law focus on the level of justice whereas, politics focuses only to the level of
expediency by which politics is regarded as the uncontrolled child of contesting interests, on the

1Vianna L. W, Burgos M. B., Salles P. M., ‘Dezessete anos de judicializacāo da politicā, in <Tempo social>, 19(2),
2007.
contrary law is neutral’. The legal constitutionalism, in a narrow perspective, tried to maintain the
relationship with the laws and moral values, considering rights as the mechanism or source for the
individual share of benefits while the political constitutionalism, in a broad perspective, doesn’t
reflect feelings for moral values and considered rights as the act of group interests.

Upendra Baxi states that ‘at this juncture of Indian Political history, the judiciary and especially the
Supreme Court, is increasingly seen as the only surviving assurance of fair play and justice, and even
as ‘last resort for the oppressed and the bewildered’. 2 Baxi’s analysis is not tainted with intellectual
arrogance. He points out that judging the judges is a very serious matter one spells out his own theory,
standard and criterion of evaluation. He articulates his premises and hence his analysis is not marked
by muddled thinking or ad hocism which is the perennial lacuna in the writings of scholars who, in
Baxi’s words ‘pickle’ with judicial pronouncements. He rightly points out that cosmopolitan learning
and imported technology of role model of judges is of little use unless we evolve out own critique in
the light of the social, cultural and political context. In special context to Indian Judiciary, Judges are
wonderful targets at all times, for the informed as well as the ignorant, for politicians as well as
lawmen. Critics of the court in India have almost forgotten that judging the judges is a very serious
business, more so since judges cannot, while in office, reply and in a status-ridden society like India
no one hears them whey they answer back from their retirement. Politicians of all shades are quick to
denounce judges or judgments when it is expedient for them to so do. Apart from the issues of
parliamentary supremacy in the matters of constitutional changes, and the criteria of selection of chief
justices, Indian politicians have failed altogether to identify what they mean by a good judge and a
good decision; they have had no time, even the party theoreticians and ideologues, to articulate any
comprehensive political critique of the court.3

As, (A)bdul (G)haffar Noorani states that in other democracy governed by the rule of law does the
higher judiciary present as pathetic a spectacle of itself as does the higher judiciary in India. This is
the direct result of the policies, particularly regarding appointments to the judiciary, which successive
Prime Ministers have pursued in the last two decades. Not that the ones followed earlier were without
flaws or that the Judges themselves did not contribute to the steep decline in the credibility of the
institutions over which they presided.4 H. M. Seervai’s aptly remarks that what can only be called a
lack of judicial discipline on the part of some judges of the Supreme Court in deciding important
questions of constitutional law, by their persistent proneness to subjective opinions in disregard of
precedent and, not seldom, of the fundamentals of the constitution itself.5 As the Indian Court has not
merely the power to read down statutes or to hold executive action illegal and void but also to strike

2 Upendra Baxi, The Indian Supreme Court and Politics, Eastern Book Company, Lucknow, 1979, p. xi.
3 ibid, p. 5.
4 A. G. Noorani, ‘The Prime Minister and the Judiciary’, in B. D. Dua (ed.) Nehru’s to the Nineties: the changing

office of Prime Minister in India, OUP, 1990, p. 94.

5 H. M. Seervai, Constitutional law of India, 4th ed., Vol. 1, Bombay, 1991, pp. 224-36.
down laws. What is more, it has also the power to review and invalidate constitutional amendments.6
The credibility of the judiciary had long stood high despite the erosion of the independence of other
institutions. According to the published report in Indian Express, ‘with all arms of the republic,
including the judiciary, almost prostrating before the ruling party, the media has been an affective
instrument of restoring some balance in the system.’7

This study is not just an analysis of Indian Judicial system rather on the policies, attitudes, and action
towards it by the Indian National Congress (hereafter congress)who bears the power most of the time
in Indian Political history. Further, the present study is to examine the role of Congress in the
appointment/transfer of the judges based on their interest which is, nonetheless, the act of
‘politicization of judiciary’. This study will mirror Congress who were weeping against CJI Dipak
Misra’s impeachment on imaginative grounds duly imagined by the Congress itself. As the Congress
and six other opposition parties had last month moved a motion in the Rajya Sabha for the removal of
Chief Justice Dipak Misra alleging five grounds of ‘misbehaviour’. However, Chairman Sh. Venkaiah
Naidu rejected the notice holding that the allegations lacked merit. Sh. Naidu, according to the
reports, held extensive consultations with top legal and constitutional experts, including former chief
justices and judges, before taking the decision. In his official words he held that ‘based on all this, I
have come to the conclusion that this motion does not deserve to be admitted…on careful analysis and
reflection, I find there is virtually no concrete verifiable imputation’. 8

In the history of world’s most powerful courts, India had, between 1950 to 2009 which includes 37
Chief Justices, 189 Judges who served on the Supreme court of India and High Courts.9 Gradually, the
Indian Constitution formally provides that three types of individuals who can be appointed to the
Supreme Court: -

(i) High court judges of five years’ standing,

(ii) High court lawyers of 10 years’ standing, or
(iii) Distinguished jurists’, that is, law professors or others.10

If the jurisprudence of the first three decades of the Court was defined by a struggle for custody of
India’s Constitution, the politics of the next three decades were delineated by a tussle for custody of
the Court’s composition.11 When the Constitution came into being, it said that appointments to the
Supreme Court were to be made by the President of India, and that the Chief Justice of India only had

6 Upendra Baxi, op. cit., p. 10.

7 Indian Express, 9th May 1992.
8 Hon’ble Chairman order on a notice of motion for removal of CJI given by Sh. Ghulam Nabi Azad, Leader of

Parliament (LOP) & other MP’s. https://rajyasabha.nic.in/rsnew/HC_orders_mothion.pdf

9 S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, New Delhi, OUP, 2002.

10 Article 124(3), Constitution of India.

11 Abhinav Chandrachud, An Empirical Study of the Supreme Court’s Composition, Economic & Political Weekly,

46(1): 2011, pp. 71-7

to be ‘consulted’ in the process. In 1981, in perhaps one of the longest set of judicial opinions ever
written by the court, the court held that the power to appoint judges lay with the executive-that
recommendations made by the Chief Justice of India would not be binding on the executive.12 In the
1990s, the court held that the advice of a ‘collegium’ of judges consisting of the Chief justice of India
and the four most senior judges of the court was binding on the executive. Today, Supreme Court
Judges are selected by this body- the collegium. 13
Substantially weakened by the pressure of
coalitional politics, and with only fractured majorities at the centre, the executive now did not have
the political power to be able to undo this holding.

The Supreme Court of India came into being on 26th January 1950, when India’s (re)framed
Constitution came into force. Harilal J. Kania, Chief Justice of the Federal Court of India, now
became Chief Justice of the Supreme Court 14 after William Patrick Spens had resigned from the post
of Chief Justice of India. Admittedly, Kania’s appointment took place despite the fact that Prime
Minister Nehru had expressed doubts about whether Kania should become Chief Justice of the
Supreme Court.15 The most confronted case between the executive and judiciary took place in 1972-
73, in the case of Kesavananda Bharati v. State of Kerala. 16 After this, rumours had started to do the
rounds that the government was preparing to ‘pack’ the Court in order to have the Golak Nath
decision overruled. The next moment it was announced on All India Radio that the next Chief Justice
of India would be Justice Ajit Nath Ray (A. N. Ray)- the fourth most senior puisne judge on the court
at the time, a judge who was not in the line of succession according to the seniority norm. The three
judges who had been superseded- Justices Shelat, Hegde, and Grover- had repeatedly held against the
government’s position in many of the key confrontational cases. Resultantly, all three resigned !17 This
punitive supersession of three senior judges created a national outrage. 18 The three superseded judges
had clearly been punished by the government for holding against it. 19
Accordingly, Jayaprakash

12 S. P. Gupta v. President of India, AIR, 1982 SC 149; (1982) 2 SCR 365.

13 Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268; In re Presidential
Reference, AIR 1999 SC 1.
14 Article 374(1) of the (re)framed Constitution provided that the judges of the Federal Court holding the office

immediately before the commencement of the constitution would automatically become judges of the
Supreme Court. This provision also applied to the post of Chief Justice. See also Second Schedule, Part D,
paragraph 9(3)(a), Constitution of India.
15 Nehru’s letter to Sardar Patel, 23rd January 1950, where Nehru wrote a letter to Patel in against of Kania’s

dissent voice against his work action. He said, ‘we should ask Chief Justice Kania to resign. It would be a great
risk to make him the permanent Chief Justice of the Supreme Court of India’.
16 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

17 ‘3 Superseded Supreme Court Judges Resign in Protest’, Times of India, April 1973.

18 Kuldip Nayar, ‘Supersession of Judges’, 1973, Indian Book Company, New Delhi.

19 Justice Shelat had consistently held against the government starting with the Golak Nath case, in each of the

defining confrontation between the executive and the judiciary. For the government, Hegde’s crime was not
merely the fact that he had against the government in the cases enumerated above. In a case involving an
election petition alleging corrupt practices against Prime Minister Indira Gandhi, Hegde had ruled that the
evidence against her was admissible. Later, it was Hegde who wrote that he had suspected that he might be
superseded when it came his turn to be appointed as the next Chief Justice of India. Hegde calls it as
Narayan wrote to the Prime Minister on 27th June 1973:

‘The simple fact is, as I have said in my statement, that if the

appointment of the Chief Justice of India remains entirely in the hands
of the Prime Minister of India, as has been the case in the present
instance, then the highest judicial institution of this country cannot but
become a creature of the Government of the day’. 20

On 27th June, the president suspended the rights to move the courts to enforce fundamental rights. A
series of politically motivated arrests followed, and as many as 676 of the government’s political
opponents were arbitrarily sent to prison. Many of the Prime Minister’s political opponents went
underground and some fled the country. The detention orders issues during the emergency were
challenged by Indira Gandhi’s political opponents. Several High Courts held in their favour. In
response, the government transferred 16 high court judges, some of whom were chief justices, to other
high courts without their consents. A list of 56 judges who had either been transferred, or who were
proposed to be transferred, was prepared by the government, and then leaked in order ton rattle the
judiciary. 21 The government, under the leadership of Indira Gandhi, claimed that the transfers were in
the national interest- in 1955, the States Reorganisation Commission had recommended that one-third
the judges of each high court be appointed from outside the state in order to foster interaction amongst
communities and to promote national integration.

However, the transfers appeared to be politically motivated and punitive, that is, designed to punish
judges for deciding case against the government. For 26 years before this, when a judge was
transferred to another court, the transfer seldom occurred without his consent. This mass transfer of
judges was stark for how it was effected without obtaining consent from any of the transferred judges.
Justice Sankal Chand Himatlal Sheth transferred case challenge his transfer which would constitute
the first step in the tussle between the executive and the judiciary for the power to control the court’s
composition.

Unfortunately, the (un)constitutional loyalty comes for a family from two central government
ministers, the minister for Law and Justice, H. R. Gokhale, and the Steel, Mines and Power, S. Mohan
Kumaramangalam 22
, who propounded the doctrine of ‘committed judges’ in Parliament while

‘Dangerous doctrine’ against of ‘Basic Structure Doctrine’. The third superseded judge A. N. Grover who had
survived an attempt on his life in March 1968, in an open court, when a deranged man with a knife luckily go
no further than inflicting a few cuts on his scalp. See also Granville Austin, Working a Democratic Constitution,
p. 281 and M. Hidayatullah, My Own Bosewell, 1981, Gulab , New Delhi, pp. 218-20.
20 S. Mohan Kumaramangalam, Judicial appointments: An Analysis of the recent controversy over the

appointment of the Chief Justice on India, Gulab, Delhi, 1973, p. 83.

21 H. M. Seervai, Constitutional Law of India, 4th ed. vol. 3, Bombay: Tripathi, 1996, p. 2698.
defending the (un)constitutional actions by Smt. Indira Nehru Gandhi. Another instance came into the
light after the judgment on Indira Nehru Gandhi v. Raj Narain23 where Supreme Court declared the
ouster clause (4) of the new article 329A to be void as violating ‘the basic structure’ of the Indian
Constitution. Thereafter, the 42nd amendment came into force on 18th December 1976 which curbed
the democratic characteristics of the Indian polity. The main objective of this amendment is to wipe
out all the ‘unamendable’ features of the constitution or to exempt the constitutional amendments
from Judicial (over)reach. On this note, Law Minister of India 24
H. R. Gokhale threatened the
Judiciary during the debate on the amendment in the Lok Sabha on 28 October 1976- ‘if the supreme
th

court were to strike down a Constitution Amendment hereafter, he said, it would be a ‘bad day for the
judiciary’.25 In the year 1976, Justice Jagmohan Sinha was to deliver the Judgement in the Raj
Narain Vs Indira Gandhi electoral malpractice case. He gets a call " If you indict Indira
Gandhi- tell your wife not to fast this Karva Chauth." To which Justice Sinha calmly replied
"fortunately my wife expired just two months back". He started receiving daily visits from
Congress MP of Allahabad which annoyed him immensely. He ‘disappeared’ himself inside
the house, which was in itself a dark day of Indian Democracy where a Judge is frightened to
give his (dissent) judgment against the political wrongdoings. And, he went on to deliver the
historic judgment that became a leading light for those seeking judicial independence and the
harbinger of the biggest abrogation and insult to the constitution by the Congress, the
declaration of Emergency; at his peril of course! Moreover, a special task force of the CID
was also employed by Mrs. Gandhi and her officials to find out the contents of the judgment.
They went to the house of Justice Sinha’s secretary, Manna Lal on the night of 11th June
1975, ‘We will come back in half an hour. You better tell us the judgment then, if you know
what is good for You!’ 26

Smt. Indira Nehru Gandhi doesn’t stop here on making bad day for the jurists. Rather based on her
(political) intervention in Shah Commission of Enquiry into the excesses during the emergency found
in its interim report. With the disappointment in mind, Jayaprakash Narayan made the perfect
comment:

‘I must say that the High Courts have come out with flying colours
in the present crisis. But the record of the Supreme Court is

22 S. Mohan Kumaramangalam in his Judicial appointments, wrote ‘it is entirely within the discretion of
Government of the day to appoint the person considered in its eyes as most suitable to occupy the highest
judicial office in the country, and to take into consideration his philosophy his outlook on life’.
23 The Times of India had compared the judgment, Indira Nehru Gandhi v. Raj Narain as ‘firing the Prime

Minister for a traffic ticket’.

24 Gokhale’s work during and after 1975 simply makes him ‘LAW MINISTER OF INDIRA(INDIA)’. (my emphasis).

25 Lok Sabha Debates, 5th Series, LXV, no. 4, 28th Oct 1976, Col. 10

26 Time of India, July 1976.

 unfortunately very disappointing, mainly because Mrs Gandhi has
packed it with pliant and submissive judges, except for a few’. 27

The case of ADM Jabalpur v. Shivakant Shukla, or the ‘Habeas Corpus case’ as it came to be known,
would go down as one of the low points of India’s constitutional history. The only dissenting judge,
Justice H. R. Khanna, held that the state did not have the power to deprive a person of his life or
liberty without the authority of law. On 18th January, Indira Gandhi decided to call elections, and 11
days later, when A. N. Ray retired on 29th January 1977, Khanna, the next most senior judge on the
court, was superseded. Instead of appointing him Chief Justice of India, the government appointed M.
H. Beg, next in the line of seniority. M. H. Beg received ‘unaccepted honour’ !28 The two instances of
supersession had taken place one after the other- Ray had superseded three judges after Sikri retired,
and now Beg was made to supersede Khanna when Ray retired. The government was only continuing
its policy of overlooking unfavourable judges for appointment to the post of chief justice, ‘fully in
keeping with the declared policy of the government’. 29
On 14th January 1950, her Law minister, P.
Shiv Shankar, ‘We are going to give a fresh look to the policy and manner of appointment’. 30
He
adopted a three-pronged strategy, One was the transfer of High Court Judges so that the Chief Justice
as well as one-third of the Bench were from outside the state. The other was wilful delay in
confirmation of Additional judges and in appointment of judges to the Supreme Court and High
Court, thus pressurising a Chief Justice of India, harassed by arrears of cases, to cave in. The last was
a letter issued on 18th March 1981 to the Chief Ministers of States asking them to: (a) Obtain from all
the Additional Judges working in the High court of your state their consent to be appointed as
permanent Judges in any other High court in the country. (b) Obtain from persons who have already
been or may in the future be proposed by you for initial appointment their consent to be appointed to
any other High court in the Country along with a similar preference for the three High Court. 31 In the
other case, March 1981, Indira Gandhi hinted at ‘a large scale (re)shuffling of administrative and
judicial services’ to undo appointments made during 1977-9.32 Justice O. N. Vohra, had held against

27 Jayaprakash Narayan on Indira Gandhi during his rally against her ‘court packing’ movements, People (Pune),
15th Sept. 1976, p. 36.
28 Justice M. H. Beg on retirement was made a director of the NATIONAL HERALD, a newspaper wholly owned

by the Congress party, and regarding fraudulent acquisition of its property both the present and past president
of the Congress party are out on bail from the court. And, Justice Beg accepted the appointment! This doesn't
end here. In 1980 when Indira Gandhi came back to power Justice M. H. Beg was made Chairman of the
minorities commission. A chair that he warned till 1988 and was awarded by 'Padma Vibhushan' by Rajiv
Gandhi for services rendered. (the obvious motive behind Justice Khanna’s supersession was the executive’s
desire to remove any possible obstacle to their future actions).
29 Times of India, ‘Beg is named Chief Justice’.

30 The Statesman, 15th Jan. 1980.

31 See, S. Gupta and Ors V. President of India, AIR 1982, 149.

32 Indira used to said that the ‘Janata and Marxist governments had made political appointments to the high

courts, and in a speech, publicly asked, ‘Can we expect justice from those who are so closely connected with
the Janata and Marxist governments? Times of India, 1981, ‘Janata Made Partisan Appointments: PM’, Times
of India, 17th March, p. 7.
Sanjay Gandhi in the Kissa Kursi Ka33 Case and was perhaps seen as a political enemy. Based on this
ill-will political involvement in Judicial system, Justice Bhagwati held that while appointing Judges,
one needed to look not merely at the judge’s professional competence, but also at his ‘social
philosophy’. He wrote:

‘The appointment of a judge of a High Court or the Supreme Court does not
depend merely upon the professional or functional suitability of the person
concerned in terms of experience or knowledge of law though this
requirement is certainly important and vital and ignoring it might result in
impairment of the efficiency of administration of justice, but also on several
other considerations such as honesty, integrity, and general pattern of
behaviour which would ensure dispassionate and objective adjudication with
an open mind, free and fearless approach to matters in issues, social
acceptability of the person concerned to the high judicial office in terms of
current norms and ethos of the society, commitment to democracy and the
rule of law, faith in the Constitutional objectives indicating his approach
towards the Preamble and Directive Principles of State Policy…’ 34

Chief Justice of India (Y)eshwant (V)ishnu Chandrachud, after retirement, in his candid interview
gave a graphic description of his discussions with Mrs. Gandhi on Judicial appointments. She told
him: ‘My Partymen come and tell me that the Chief Justice wants that man to be appointed. I know
you have no politics in you. But I am a political leader, I have to carry my people with me. I cannot
displease my own people. My difficulties are political difficulties.’ 35 Coupled to this was a calculated
policy of favours to favourites. Two instances will suffice R. Dayal, the magistrate who had ordered
her release in October 1977, superseded thirty District Judges and was made Commissioner for Sick
Mills.36 Another instance, is of Justice Baharul Islam. He was a Congress member of the Rajya Sabha
for a whole decade from 1962 to 1972, when he was appointed as a judge of Gauhati High Court.
Baharul Islam retired as Chief Justice of the High Court on 2nd March 1980. Unprecedentedly, in the
annals of the judiciary, a judge who had retired from office was recalled from retirement and
appointed as Judge of the Supreme Court on 4th December 1980, despite the fact that he could serve as
Judge only for a mere fifteen months before retiring from the Supreme Court. On 13th January 1983,
Baharul Islam resigned as Judge of the Supreme Court, just forty-Six days before his retirement. Two
days later, the Hindustan Times reported that he was expected to contest as a Congress(I) candidate

33 V. C. Shukla, former Minister for Information and Broadcasting, and Sanjay Gandhi, Indira Gandhi’s son, were
involved in destroying a film critical of the Congress Party, Kissa Kursi Ka (The Story of the Seat). See also State
Through Delhi V. Sanjay Gandhi, AIR 1978 SC 961.
34 S. P. Gupta v. President of India, 1982, 2 SCR 365, p. 546.

35 Sunday, 21st July 1985.

36 Indian Express, 5th December 1980.

from Barpeta in the Elections to the Lok Sabha from Assam. 37
The second Judges case would be
decided by the Supreme Court of India nearly 12 years after the first case had been decided. Between
December 1981 (the first Judges Case) and October 1993 (the second judges case), the political
landscape of India would drastically change. The All India Radio announced the prime minister’s
death at 6 pm, and eight hours later, Rajiv Gandhi, her elder son, was sworn in as the New Prime
Minister of India.38 In May 1985, a bench of three judges of the Supreme Court of India accused the
Rajiv Gandhi government of packing the high courts with ‘sycophant judges’. 39
Further, Chawla
himself wrote, ‘the message was clear: Keep a judge in an acting position so that he concurs with the
Government’s recommendations on appointments to the bench in the hope of getting confirmed
himself’.40 The judges transfer policy was being applied by the executive in a selective and arbitrary
manner. The transfer policy required that a high court chief justice come from the outside, but the
policy was selectively applied. 41The government’s judges’ transfer policy seemed to be one of ‘pick’
and ‘choose’!42 Chief Justice R. S. Pathak, a senior lawyer, commented that all this pointed to the fact
that ‘Rajiv Gandhi (believed) in his mother’s philosophy of packing the judiciary with favourites and
committed judges’ and that state governments had been ‘encouraged to tinker with the Judiciary’.43
Additional Solicitor General Kuldip Singh was for the third time in the Court’s history- appointed
judge of the Supreme Court directly from the Bar without having served as Judge of a High Court’.
This was on the 14th December 1988. Only six months later, on 28th June 1989, he was appointed by
the Rajiv Gandhi government as a one-man Commission of Inquiry to probe into charges against a
leading opposition figure, Ramakrishna Hegde, former Chief Minister of Karnataka.

Early in 1989, there were signs of government interfering with judicial appointments at the high
courts once more. At the Madhya Pradesh High Court, once again, the acting Chief Justice G. Sohani
was not confirmed as permanent Chief Justice by the government for 18 months, to use this
potentially as a ploy to coerce him into accepting the government’s appointments. 44
An additional
judge at that court, Brij Mohan Lal, was not confirmed as a permanent judge for several years, despite
having been recommended for confirmation by three high court Chief Justices (Oza, Verma, and

37 Hindustan Times, 27th April 1986.

38 Times of India, 1984, ‘Nation Mourns Indira’, 1 November, p. 1.
39 Prabhu Chawla , Flouted Guidelines, India Today, 15th June 1985, 10(11), p. 78.

40 Ibid, p. 78.

41 For instance, Yogeshwar Dayal was made Delhi High Court Chief Justice and K. N. Saikia was made Gauhati

High Court Chief Justice, and both these judges had served as puisne judges on these courts respectively. Debi
Singh Tewatia, Chief Justice of the Punjab and Haryana High Court, was transferred to the Calcutta High Court,
was transferred to the Calcutta High Court only a day after he took over as Chief Justice of his own court.
Tewatia had made a pro-communist speech during the Emergency, which some felt might have influenced the
decision to transfer him. See also, Prabhu Chawla, ‘Shuffling the pack’ , India Today, 15th November 1987,
12(21), p. 76.
42 It included the Delhi High court Chief justice T. P. S. Chawla and the Punjab and Haryana High Court Chief

Justice, H. N. Seth. See also Chawla, ‘Shuffling the Pack’, p. 76.

43Chawla, Shuffling the Pack, p. 76.

44 N. K. Singh, Injudicious Actions, India Today, 30th June 1989, 14(12), p. 52

Sohani), and three was allegedly done because Lal had struck down the government’s liquor policy. 45
In the meantime, the judiciary, in 1990s, was suffering from a crisis of credibility. A day before
retiring from the Court, the outgoing Chief Justice of India, E. S. Venkataramiah, told a eminent news
reporter Kuldip Nayar, that the ‘judiciary in India has deteriorated in its standards because such
judges are appointed, as are willing to be ‘influenced’ by lavish parties and whisky bottles’.46
Allegation of corruption were also beginning to emerge against a sitting Supreme Court judge,
something that had not happened since the inception of the court- V. Ramaswami, a sitting Supreme
Court judge, was being accused of misusing his office as Chief Justice of the Punjab and Haryana
High Court. Soli Sorabjee, a noted Supreme Court senior lawyer, said that ‘Standard of Judicial
integrity’ had ‘fallen alarmingly’.47 Chief Justice Sabyasachi Mukharji said that the judiciary was
facing a ‘crisis of credibility’.48

More pressingly, allegation against V. Ramaswami grew serious. As, reported in India Today that he
had been appointed Chief Justice of the Punjab and Haryana High Court because he had ‘promised to
be strict in granting bail to militants’.49 Further, the allegation against him was that he exorbitantly
spent state funds, especially to furnish and renovate his residence.50 The quid pro quo between
Ramaswami and the Congress party were true ! Recently, the man, Kapil Sibal, who made a pseudo
legal cry against CJI Dipak Misra on his impeachment issue which was made by his party,
vehemently. Why Kapil Sibal forget that because of Congress abstention in Justice V. Ramaswamy’s
Impeachment case in Lok Sabha he was survived! It is a matter of fact that Justice Ramaswamy who
was appointed as CJI under Congress (I) and his removal could have undermined the party’s
credibility. Especially Rajiv Gandhi had sent him as Chief Justice to Chandigarh to look after the
‘terrorist Cases’. Besides, his son was also Congress (I) MLA from Tamil Nadu. In the run-up to the
first-ever impeachment proceedings in Parliament, the opposition parties had no hesitation in issuing
whips requiring all their members to attend the House. But the Congress (I) leaders initially dithered
as Tamil Nadu MPs launched a campaign insinuating parochial motives behind the impeachment
move. As for the Congress (I), it has reinforced its image of being a party that balks at taking a stand
on contentious issues. There has been speculation about the party making a deal with Ramaswamy to
the effect that if it spared him the humiliation of impeachment, he would later resign. Until he does,
though, he will be its new albatross.

However, in India, though the appointment of judges is theoretically made by the president, for all
practical purposes the collegium appoints judges. Given that no judge in independent India has

45 Ibid, p. 52.
46 See Vishwanath v. E. S. Venkataramiah, 1990, 92 Bom LR 270.
47 Chengappa and Rahman, Crisis of Credibility’, p. 18.

48 Raj Chengappa, ‘I feel very sorry and perturbed’, India Today, 1990, 15(13), p. 22.

49 Rahul Pathak, ‘Crumbling Citadel’, India Today, p. 52.

50 Manoj Mitta, ‘Move to Impeach Justice Ramaswami’, Time of India, 3rd March 1991, p. 24.
successfully been removed by the process of impeachment so far, the collegium system illegitimately
insulates the Supreme Court and the judiciary from vibrant democratic checks and balances.51

The frustration is evident!!! It's overwhelming. Justice Deepak Mishra is succumbing neither to
inducement nor to Blackmail!!!

And this when he was appointed as judge of the High Court and Supreme Court by the Congress! The
reason for suicide mostly is frustration. And, if psychological help is not available or declined then
Hara-kiri they will commit. For the sake of freedom of the nation from their unholy shackles.

51 Abhinav Chandrachud, The Insulation of India’s Constitutional Judiciary’, EPW, 2010, 45(3): 38-42.