IT WOULD BE FAIR to say that the government was not fond of Justice KM Joseph who retired from the Supreme Court on June 16. The tale begins in 2016 with the Uttarakhand High Court refusing relief to nine Congress MLAs facing disqualification ahead of a trust vote where they were set to oppose the Harish Rawat government. This led to the Centre imposing president’s rule which was quashed by Justice Joseph who was the chief justice of the high court. The Rawat government survived and limped on until it lost the next state election by a convincing margin and the Bharatiya Janata Party (BJP) assumed office.
The ruling overturning Central rule is hailed by some commentators as an act of judicial independence that halted a Centre keen on toppling opposition governments. The Centre likely did not see it in that light, instead considering the developments as a lopsided judicial intervention in a political situation. While defections may not be a happy circumstance, they are a reality. After the Congress-led United Progressive Alliance assumed office in 2004, it made short work of governments in Goa and Nagaland (more were to follow). The BJP brass might have wondered how the rules were suddenly altered when it came to Uttarakhand.
The disqualification of MLAs in particular was very troubling. The decision turned on its head the basic and inalienable right of a legislator to vote according to her choice in the Assembly or Parliament. It is true the rebels had declared their intent but the hasty action against them preceded any violation of the whip which would have made them vulnerable to disqualification. Justice Joseph’s view (with regard to Central rule) that the Centre’s action amounted to interference, which lacked legitimacy, came even as reports emerged alleging that the Rawat government was making frantic efforts to shore up its majority by horse-trading. Finding a moral or ethical argument in the midst of the disqualifications and the imposition of Central rule seemed odd, to say the least.
Thereafter, reports in the media suggested that Justice Joseph’s elevation to the Supreme Court was delayed till he did take his place on the Bench in August 2018. Not long before his retirement, he led the Bench that radically changed the process by which election commissioners are appointed, holding that a committee comprising the chief justice of India, the prime minister and the leader of the opposition would pick the election commissioners. The decision to strip the Centre of its powers in the appointment process is based on a desire to ensure that the election of a government is free of any abuse of the electoral process.
The ruling notes that democracy can succeed only if all stakeholders remain committed and steadfast. Most commentators missed the irony: a rule or an institution is as good as the individuals concerned. A former chief election commissioner was known for taking loo breaks during meetings to speak to his political principals. No fence can stop a devious gatekeeper. Moreover, the reasoning was based more on apprehensions rather than evidence that the selection system was broken or subverted.
On the other hand, the committee system, held as a guarantor of ‘purity’ in elections, is quite dysfunctional. The latest instance of Congress leader Adhir Ranjan Chowdhury claiming he was not consulted on the award of the Gandhi Peace Prize to Gita Press, and the government producing emails to the contrary, buttresses the point. Over the past several years, Congress representatives on committees to select top officials, such as the chief of the Central Bureau of Investigation or the central vigilance commissioner, have routinely dissented, clearly following a political brief. It is hard to avoid the conclusion that the ‘reform’ of the election commissioners’ selection process basically amounts to the inclusion of the judiciary. The judiciary’s refusal to review its own stranglehold on appointing judges is beyond the point.
While hearing a case relating to the 2002 Gujarat riots just prior to his retirement, Justice Joseph noted that some of the parties did not want him to hear the matter. It was a discordant note at the end of a long career in the judiciary, perhaps indicating resentment rather than fulfilment.