Early signs of canker in constitutional system

The recent resignations of a few judges and bureaucrats deserve serious attention. They are early intimations of a canker in India’s constitutional order. Madras High Court Chief Justice Vijaya Kamlesh Tahilani reportedly put in her papers after the Supreme Court collegium rejected her plea to reconsider the decision to shift her to the Meghalaya High Court.

The Madras court is one of the oldest and largest and the Meghalaya court one of the youngest and smallest.

The transfer does not involve demotion as the job title and the emoluments remain the same. However, in public perception conditioned by notions of hierarchy, it is a punishment as well as an insult.

The bureaucrats who resigned are young Indian Administrative Service officers Kannan Gopinathan and Sasikanth Senthil.

In interactions with the media, both cited curbs on freedoms as the reason for quitting. Kannan Gopinathan pointedly referred to the Kashmir situation. “There is a clear fascist onslaught,” said Sasikanth Senthil. The message they are sending out is: all is not well with the constitutional system.

Justice Tahilramani’s exit turns the spotlight once again on the working of the collegiums of the Supreme Court and the High Courts, comprising the Chief Justices and the four seniormost judges.

The collegiums are bodies not provided for in the Constitution. They were created by the apex court through judgments which materially altered the original scheme for appointment and transfer of judges of superior courts. The judgments shifted primacy in matters of appointments and transfers from the Executive to the Judiciary.

Soon after coming to power in 2014, Prime Minister Narendra Modi pushed through Parliament a law to create a judicial commission to select judges. The Supreme Court struck it down.

Subsequently, judicial appointments became a matter of contention with the Government asking the SC collegium to reconsider some of its recommendations. In most cases, the collegium reiterated its recommendations but in a few cases it revised them.

The collegiums are opaque bodies whose decisions are not backed by recorded reasons.

Justice Tahilramani was a judge of the Bombay High Court for 17 years during which she also acted as its Chief Justice. She was appointed Chief Justice of the Madras High Court in August last year.

What prompted the SC collegium, which considered her suitable for the Madras post last year, to think of sending her to a much small court remains a mystery. Court-watchers have not been able to come up with anything which can even remotely cast doubts on her ability to head a large court.

The only possible reason that anyone has been able to find is her 2017 judgment in the Bilkis Bano gang rape case. It was one of the cases arising from the communal riots that rocked Gujarat when Modi was the Chief Minister.  The Supreme Court had transferred it to Mumbai in the interests of fair trial.

The trial court awarded life sentences to 11 persons on rape charges but acquitted five police officers and two doctors who were charged with destroying evidence. On appeal, a bench headed by Justice Tahilramani confirmed the life sentences and overturned the acquittals.

If Justice Tahilramani’s transfer is indeed connected with the Bilkis Bano verdict she is the second judge paying the price for the judgment in a Modi-era Gujarat case. The first was Justice Jayant Patel who resigned after two transfers within a year.

As acting Chief Justice of Gujarat High Court in 2011, Justice Patel had ordered the Central Bureau of Investigation to probe the 2004 killing of Ishrat Jehan, a teenage girl from Mumbai, and three men who the state police alleged were sent by Lashkar-e-Taiba to kill Modi.

The CBI found no evidence to link Ishrat with LeT. It charged several top police officers with killing the four in a fake encounter.

Another name which came up in that case was that of Amit Shah, who was a Minister in Modi’s Gujarat Cabinet. In May 2014, a few days ahead of Modi’s swearing-in as the Prime Minister, the CBI cleared Shah’s name. Subsequently the policemen were also discharged one after another.  

Currently Union Home Minister and President of the ruling Bharatiya Janata Party, Shah is the second most powerful man in India’s political establishment.

There is no material in the public realm to justify the transfers of Justices Tahilramani and Jayant Patel in violation of guidelines laid down by the apex court in judgments previously.

There is also no material to explain the curious coincidence of the collegium picking judges who have presumably incurred the political establishment’s displeasure for such transfers.