‘The government’s silence is ominous’

FORMER Union Minister and practising Supreme Court lawyer Manish Tewari feels the government's “silence” on the Supreme Court controversy is “ominous”. “For any totalitarian regime to succeed, all other institutions should either appear to be riven by contradictions, or appear to be incapable of providing leadership,” he said in an interview with Frontline . Excerpts:

What, in your opinion, is the exact cause of the crisis gripping the Supreme Court today? Is it just those reasons stated in the letter by the four senior judges or is there something to be read between the lines? Do you somewhere see a government hand in the crisis?

The letter written by the four senior judges is self-explanatory. They have clearly talked about some issues, and those issues need to be resolved. This is a sensitive issue and to go beyond what is written in the letter, or look for hidden meanings, is not advisable. One should not be judgmental about such sensitive issues.

As far as the government’'s hand is concerned, I would only like to say that tensions between the judiciary and the executive, or within the judiciary itself, are nothing new. It has existed over the years, over matters like judges’ appointments or operational procedures, etc. It has to be evaluated in a broader perspective. It was exactly the reason why the NJAC [National Judicial Appointments Commission] idea had come about. The NJAC Bill was passed unanimously by both Houses of Parliament, [supported by all] except Mr Ram Jethmalani [who abstained]. The majority of the States had also endorsed the Bill. But the Supreme Court unfortunately envisaged it as infringing on its autonomy and struck it down. But the question of MoP [Memorandum of Procedure] had been left open- ended by the Supreme Court, for the government to prepare it. It has been left hanging since then and is often used as a tactic by the government to put pressure on the judiciary in matters of appointments, etc. The judiciary, too, has been trying to resist such pressures, and the standoff has been continuing since 2015. Such tensions were witnessed during the UPA rule too, but we handled it better. Here it suits the government to just watch the drama from the sidelines.

Do you mean to say that somewhere the entire crisis has been flagged off by the government directly or indirectly?

See, the judges’ letter does not allude to any intervention by the government so I am not going to come to any conclusion on that. The sensitive nature of the issue does not allow us to weave conspiracy theories or build castles in the air. The judges’ letter is specific to some issues and we should just focus on resolving those issues at the moment. But I would definitely like to say that demagoguery triumphs only when other institutions appear to be floundering. Any totalitarian regime succeeds only if it can make other institutions appear either riven by contradictions or incapable of providing leadership. Demagogues triumph at the cost of weakening other institutions. In this context, the government’s silence is eloquent, it is ominous.

In such a scenario, do you think political parties can have a role in resolving the crisis?

Only if our intervention will lead to further strengthening the institution, not lead to its weakening. Political parties have already destroyed the significance of the legislature as an institution in a democracy. Now we should play a role only if we can strengthen the institution of the judiciary, which in turn will lead to the strengthening of democracy in our country.

But given the standoff, what do you see as a way out?

There have been precedents in the past, both in High Courts across the country, and in Supreme Courts across the world, where the judiciary has sorted out its problems on its own. We have instances in our High Courts and in Supreme Courts elsewhere in the world where the rostering system is clear and transparent. In our country too we have a system in place, but the Chief Justice is the master of the roster, and has a discretion, and rightly so. But this has at times led to tensions that we talked about earlier. It is not difficult for the judges to sit down and resolve the issues on their own.

But in my opinion, the time has also come for a little sunshine when issues like this crop up. A little bit of sunshine doesn’t do any harm to anyone. We can look at the process of judicial confirmation prevalent in the U.S. where the Senate, in a televised debate, discusses and votes on judges’ appointments. The process of judicial confirmation is open and transparent. We can consider for our legislature too to have confirmation hearings on senior High Court and Supreme Court appointments. People have been troubled by the fact that the entire process of judicial appointments is not reiterated between the judiciary and the executive. Notwithstanding the NJAC, at least the legislature can have a role in judicial appointments. The government has so far narrowly focussed on the executive having a role in judicial appointments. But the time has come to explore a wider format for a more inclusive and transparent system for senior-level appointments in the judiciary. In this context, judicial confirmation is an idea whose time has come. Confirmation hearings can be discussed.

Communist Party of India (Marxist) leader Sitaram Yechury has talked about the opposition parties discussing the prospect of impeachment of the Chief Justice. What is your take on this?

Impeachment is a very serious issue and cannot be talked of lightly. The issues which could lead to even contemplating impeachment should be examined very, very minutely. The evaluation of any such issues has to be strictly from a legal point of view, not to score political brownie points. If our initiative is such that it weakens the institution, then we will only end up undermining democracy. Yechury has not attributed any substantive reasons for the thought. Just the fact that a press conference has been held which raised certain issues, can’t be the basis for contemplating impeachment. After all, this tension was not something which came to the fore all of a sudden. It had been there for sometime and there are certain issues involved. The judges themselves have to resolve these issues in the given circumstances. All we should do is to look for a better template wherein such tensions can be better addressed. After all, this is an evolving issue, it is just the beginning.