The resignation of Justice Jayant Patel as a judge of the Karnataka high court marks a crisis moment for the judiciary in India. He quit following the order of his transfer to the Allahabad high court, where he would have been the third seniormost judge in the hierarchy, as compared to his current No. 2 position in the Karnataka high court: when the current chief justice, Subhro Kamal Mukherjee retires on October 9, he would ordinarily have become acting chief justice of the court.

Given the perception that Justice Patel is paying the price for directing a CBI investigation into the Ishrat Jahan fake encounter case when he was the acting chief justice of the Gujarat high court, both the Karnataka and Gujarat Bar Associations have announced a boycott of the courts for a day. The CBI’s probe in the Ishrat Jahan case led to the arrest and chargesheeting of a large number of senior Gujarat police officers for her cold-blooded killing and was a major embarrassment for Narendra Modi, who was chief minister of Gujarat at the time.

In an interview to Bar and Bench, Justice Patel has said that he resigned to be relieved from the institution, and that he wished to make no other comment. But his silence over the apparent reasons for his resignation is eloquent.

Eerily similar to previous supersessions to the post of CJI

Compared to other branches of the state, crises in the judiciary are rare. Certainly, the resignation of a senior judge in protest at what he or she perceives to be an injustice marks the onset of a crisis phase. For the protest is not just an act of highlighting an individual grievance. It also underlines the fact that those entrusted with the responsibility of upholding the independence of the judiciary have allowed themselves to be used by the executive as pawns in pursuit of a vindictive agenda.

In a sense, much has changed in the relations between executive and the judiciary since the previous crisis moments witnessed during the infamous supersession of the chief justice of India by Indira Gandhi in 1973 and 1977. The invention of the collegium system to appoint and transfer judges of the high courts and Supreme Court in the 1990s is one such change which marked a complete break with the government’s primacy in the process.

As long as governments with fragile majorities were in office at the Centre, this break appeared more real than imaginary. With the coming to power of a single party majority government in 2014, one wonders whether the primacy of the judiciary vis-a-vis the executive in the process of appointments and transfers is more imaginary than real.

By resigning, Justice Patel is perhaps telling us that the independence of the judiciary – in defence of which the Supreme Court struck down the National Judicial Appointments Commission in 2015 – may indeed be a farce, as the Supreme Court’s collegium has hardly been able to safeguard its primacy in the face of executive stubbornness over appointments and transfers of judges.

The non-appointment of the former solicitor general, Gopal Subramanium as a judge of the Supreme Court in June 2014 despite the collegium having recommended his name marked the beginning of this phase. The transfer of Justice Rajiv Shakdher from the Delhi high court to the Madras high court and that of Justice Abhay Mahadeo Thipsay from the Bombay high court to the Allahabad high court made it clear that the collegium had no option but to cede ground to the executive in practice, whatever the Supreme Court might have held in its First, Second, Third and Fourth Judges cases.

It is no coincidence that in each of the three examples referred to above, the candidates for the high office of judges or the incumbent judges had to pay the price for having contributed to rulings which went against the interests of those currently in power at the Centre.

Gopal Subramanium, as amicus curiae, was responsible for the Supreme Court entrusting to the CBI the investigation into the disappearance of Kausar-bi and Sohrabuddin Sheikh in a fake encounter. The then Modi government in Gujarat opposed the decision.

Justice Rajiv Shakdher, as a judge of the Delhi high court, embarrassed the Modi government in 2015 by setting aside a lookout notice issued by the Intelligence Bureau against the Greenpeace activist, Priya Pillai, preventing her from going abroad to address a UK parliamentarian group. Justice Shakdher defended her right to travel, and express dissent.

Justice Thipsay, as a judge of the Mumbai sessions court in 2006, had imposed life sentences on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat carnage – a case that had been transferred out of Gujarat by the Supreme Court because of the Modi-run state government’s manifest unwillingness to seriously investigate and prosecute the crime.

While Gopal Subramanium withdrew his candidature for Supreme Court judgeship to prevent any embarrassment to the collegium when it became clear that the Modi government had rejected his name, Justices Shakdher and Thipsay, despite their lack of consent to their transfers for personal reasons, acceded to the new postings. Justice Thipsay, who served just a year in the Allahabad high court, before his retirement, could not fathom why he was transferred, despite his reluctance, considering that his remaining tenure was very limited.

Justice Jayant Patel felt compelled to quit because his transfer seemed to have been ordered in order to forestall his possible elevation as the acting chief justice of the Karnataka high court.

Powerful interests then and now

In the history of the Indian judiciary, April 25, 1973 and January 29, 1977 are both considered as crisis moments – when the senior-most judges of the Supreme Court quit following their supersession, in the appointment of the chief justice of India by the then prime minister, Indira Gandhi. On April 25, 1973, Justice A.N. Ray was appointed as CJI by superseding three senior-most judges.

The three judges were part of the majority in the Kesavananda Bharati case, which held only the previous day, that parliament cannot use its amending power to alter the basic structure of the constitution. The three judges – Justices J.M. Shelat, K.S. Hegde and A.N. Grover – resigned following the appointment of Justice A.N. Ray as CJI, after the retirement of the outgoing CJI, S.M. Sikri.

Justice Ray was considered as a judge who was inclined to decide in favour of the government, as the late T.R. Andhyarujina noted in a perceptive article in the Indian Express titled ‘When the bench buckled’.

On January 29, 1977, Justice H.R. Khanna was superseded by Justice M.H. Beg as CJI, following which he resigned. Justice Khanna was the lone dissenter in A.D.M. Jabalpur v Shivkant Shukla decided by the Supreme Court’s five judge constitution Bench in favour of the government during the Emergency. The majority judges in this case held that fundamental rights could be suspended during the Emergency, and the legality of detention orders, even if mala fide and without authority of law, could not be questioned.

In the recent judgment elevating the right to privacy as a fundamental right, the Supreme Court’s nine-judge constitution bench formally overruled this judgment after 40 years. It was not necessary to do so, as successive benches of the Supreme Court had never considered A.D.M. Jabalpur a binding precedent, and impliedly overruled it. Besides, Article 359 was amended, following the 44th amendment to the constitution, to provide that during the operation of an Emergency, the power of the president to suspend the right to move a court for the enforcement of fundamental rights shall not extend to Articles 20 and 21 – which essentially guarantee the right to life.

By formally revisiting that shameful chapter in its history, and taking symbolic steps to formally erase its memory from its history, the Supreme Court might have felt it has unburdened itself, after 40 years.

While that symbolic gesture was hailed for its significance, one is tempted to ask whether it has had any real influence on the current collegium.

An embarrassing question which may be posed to the collegium is whether by failing to elevate Justice Jayant Patel as the chief justice of the Karnataka high court or as a judge of the Supreme Court, are its members not behaving in the same way as their predecessors did in the infamous A.D.M.Jabalpur case. If the majority judges in that case were guilty of not displaying enough courage to stand up to powerful interests, today’s collegium, despite the ringing assertions of judicial independence made in the intervening years, may prove to be just as pusillanimous in defending that cherished objective as their unillustrious predecessors.