Servile Judiciary of no use, Former CJI Thakur raises concerns over independence of judiciary

The seminar on ‘Independence of Judiciary – A Nationalist Perspective’was conducted today by Global Jurists, at Delhi’s India International Centre.

The seminar was attended by several eminent jurists including former Chief Justice of India TS Thakur, former Delhi High Court Judge Justice Kailash Gambhir, former Chief Justice of Punjab and Haryana High Court Justice Vijender Jain along with journalist HK Dua and renowned professor Dr. Mool Chand Sharma.

Justice Kailash Gambhir

Justice Kailash Gambhir, who is also the founding patron of Global Jurists, gave the introduction speech and spoke extensively about the recent events regarding the judiciary and their ramifications.

With regard to the controversy surrounding the elevation of Justice KM Joseph, Justice Gambhir stated that the situation was shocking.

“If a judge like Justice Thakur would have been there, the file would have been sent back in a minute with the reiteration”, he said.

Justice Gambhir stated that when the collegium unanimously recommends someone’s name, the government should accept it. He further said that this issue of Justice Joseph being a junior was irrelevant.

With regard to the judges’ press conference, Justice Gambhir stated that it was earth-shattering. He read the letter written by the senior most judges to the Chief Justice Dipak Misra and said that the CJI should have communicated with them. However, he did not bother.

He, however, stated, that he did not agree with the approach of the senior most judges and said that they should not have come out like that.

“It harmed the reputation of the judiciary. They should have sorted things out internally. Why can’t we put our house in order. Who else will do it? Will forces come from outside?”

Justice Gambhir also said that the CJI did not show leadership and that he should have taken the senior judges into confidence.

Justice Gambhir also raised questions at the manner in which the Government tries to get its way regarding the appointment of judges. He said that the executive manipulates the intelligence report on judges which was most unfortunate.

“There should be some other alternative….A particular judge’s elevation was stopped for 10 years by saying that he was an alcoholic. However, in fact, he was a teetotaler.”

Finally, he said that the parliament is the Bar and the Bench, and they must be preserved.

Justice Vijender Jain

Justice Jain seconded Justice Gambhir. He said that every government says that they are for the independence of the judiciary. However, sometimes the decisions are not to the liking of the people in power. This has been the case since 1952.

He further stated that a judge should not have any fear. If he fears as to how his decision will be perceived by the people or the media, then the independence of the judiciary will be affected.

If a judge feels that since the government has appointed him, how can he decide matters against the said government, then he should not become a judge.

“I always say that one should not become a clerk of the government.”

Justice TS Thakur

At the outset, Justice Thakur stated that for the past year and a half, he has not attended any public function and therefore did not express his views on the current state of affairs.

“It was a self-imposed exile so that I could reconcile with my retired life. But due to the insistence of Justice Gambhir, I decided to come to this event” 

Justice Thakur stated that he has always believed that judiciary has and will always be independent.

“Let us hope that this does not belie. A servile judiciary would be of no use to us or to our future generations.”.

Justice Thakur stated that the threshold of tolerance for any misdemeanor by a judge is very low in our country. Such is the depth of the confidence of people in the judiciary. Even a small incident involving the judiciary becomes news. Independence of the judiciary is, therefore, non-negotiable.

Justice Thakur also talked about the consequences of not having an independent judiciary. He said that the enforcement of fundamental rights without an independent judiciary would be an illusion. He also said that upholding the federal structure of our polity would be difficult as would be having a secular and egalitarian society.

“We have to work for the protection and preservation of our hallowed institution.”

Regarding the current state of affairs, Justice Thakur stated that the recent events have been eye-opening.

He said that many political parties and media outlets have made statements about the sordid affair concerning the judiciary. He added that however, no sensible politician or media person can be accused of any indiscretion.

Finally, he said that,

“I firmly believe that judges ought not to look outside for solving the issues. There is a reservoir of talent within which must be used.”

Journalist HK Dua

Dua began with saying that there was a kind of warning that emerged from the speeches of Justice Gambhir and Justice Thakur.

“All constitutional institutions be it the parliament, judiciary, media, election commission… serious attempts are being made to bring everything under the control of the executive.”

The courts are the last hope of the people. So independence of the judiciary also the concern of ordinary people, he said.

“The constitution is itself under attack and serious attempts are being made to divide the judiciary.”

Dua stated that the same thing happened during the emergency imposed by former Prime Minister Indira Gandhi. She had started packing the judiciary even before the emergency.

“The job of a prime minister is to nurture the constitutional institutions and not undermine them. No government has unquestionable power.”

Dua further stated that a single party majority should have brought stability and growth to the country. However, there is an atmosphere of intolerance in the country today.

He said that if one destroys the institutions, the chaos will spill over to the street.

Professor Mool Chand Sharma

Prof Sharma spoke extensively about the need for independence of the judiciary and also highlighted some positive aspects in the background of the current turmoil.

He stated that Prime Minister Indira Gandhi, during the emergency, said that she was following the constitution. Even the present government says that it is following the constitution. They do not have the power to say that we are doing something unconstitutional, he said.

“The constitution is a great weapon. It depends on your creativity and your intelligence as to how you use it.”

Professor Sharma constantly emphasized on the need for honeycombing in the judiciary. Regarding the judges’ press conference, he said that the four judges played into the hands of the political people.

“They said that democracy was in danger. They may be right but they spoke like politicians. They gave a chance to journalists and other people to come out in the open with the internal bickering of the judiciary.”

Professor Sharma referred to the midnight hearing at the Supreme Court regarding the political situation in Karnataka and stated that such a thing could not happen anywhere in the world.

He praised the way the CJI heard the matter urgently and constituted a Bench for hearing the matter at length way into the early hours of the morning. He lauded the observations made by the court as well as the interim order.

“Along with the problems, such positive things should also be discussed.”

Regarding the impeachment motion, Professor Sharma stated that it was a tool to threaten and intimidate the judiciary as the people behind it knew that they did not have sufficient numbers to go through with it.

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