A Young Lawyer's Farewell to Chief Justice Thakur
NEW DELHI: It was 2013, I had recently joined the bar and was at the office of the Additional Solicitor General of India. The ASG represented the Government in a variety of service disputes. Such matters were often listed in Justice Thakur’s court. Cases ranged from litigation on claims of pension to cases by workers against arbitrary actions of the State in promotion and transfer of employees. The Government’s willingness to litigate coupled with their everchanging regulations have created a confusing law regime. This is also reason for the increase in the number of cases at the Supreme Court.
In court, one would often see petitioners holding faded documents with employment details and old court orders by judges who have long retired. Justice Thakur never rushed to finish such matters. He heard these individuals with an empathetic ear and interpreted law to provide social justice.
When the court was not able to pass a favourable order he strained to convince the state to take a lenient view. Every Judge of the highest court does not react similarly; often the fact that she has been rejected by tribunals and courts before is enough for the judge to dismiss the matter. That Justice Thakur consistently heard such cases shows his conviction in the promise of equal access to constitutional courts.
On access to Courts, he fought an important battle for maintaining the independence of the judiciary. One may go back to April of 2015 where in the conference organised for chief justices and chief ministers attended by the Prime Minister himself, Justice T.S. Thakur made an emotional plea to the Government for urgently changing the abysmal judge to population ratio.
However, nothing much changed, in February, 2016 the collegium led by Justice Thakur has made 75 recommendations for appointment and transfer of High Court Judges. Till date the executive is sitting on most of these recommendations.
The excuse is that the memorandum of procedure has not been finalised. I don’t understand -- if that is the case, then why are selective names being cleared by the executive?
In the last 10 months despite the reiteration of 43 names by the collegium the Executive refuses to do what is required by law. On, 2nd January 2017, an exasperated Justice Thakur issued an order asking the Centre to file a report in 2 weeks on why the Government continues to delay the constitutionally binding recommendations of the collegium.
It’s important to recognise his courage of conviction in the independence of the judiciary. He was not just standing up to an executive that blatantly delayed the decisions of the collegium but also a regime that had ministers attacking the credibility of the judiciary.
One must recall the Finance Minister's statement claiming the NJAC decision to be the tyranny of the unelected. While a MP in view of a Judgement that set aside quota in promotion of SC/ST in state services said that the Judiciary is partaking in “extra constitutional judicial activism”. The Law Minister and Attorney General also constantly speak of some Lakshman Rekha that the Judiciary must not cross.
This is sad because while politicians can speak at length, the judiciary cannot speak to defend themselves. For Ministers to attempt to mould public opinion against the judiciary is antithetical to the idea of a constitutional democracy.
Justice Thakur’s taking on the executive on the appointments of judges was important in maintaining the courts institutional credibility.
Another set of important decisions were taken by Justice Thakur in the BCCI case. Today, the BCCI case has become a saga and many lawyers have opined that the judgement of the Court to interfere in the administration of cricket is jurisprudentially weak. Many cricketers also feel the courts could have avoided such interference. The debate on the legal correctness of the court orders is not of relevance here, as I am only looking at the facts that led to court inteference.
The matter came to court when Mr. Gurunath Meiyappan (the son in law of BCCI President N.Srinavasan) as well as owners of franchises in the Indian Premier League (IPL) were accused of betting and match fixing. It was also discovered that tThe BCCI without following the required process had amended clause 6.24 of BCCI regulations. The clause read “No administrators shall have, directly or indirectly, any commercial interest in the matches or events conducted by the Board.”
The BCCI through an amendment added the following words ““excluding events like IPL or Champions League Twenty20.” The Court found these acts more than reason enough to inspect the functioning of the Board. Subsequent orders led to the setting up the Lodha Committee.
What happened consequently was disgraceful, the BCCI top brass reacted with institutional disregard towards the Court and refused to implement the Lodha Committee recommendations.
Anurag Thakur, who holds the position of the BCCI President while being a member of the ruling party did all that is possible to evade complying with the order of the Court.
In fact, it’s been argued in court that Anurag Thakur, tried to dodge despite the Supreme Court order ofenforcing Lodha committee’s recommendations by sending a letter dated 06.08.2016 to the ICC president asking him to issue a letter articulating that a nominee of the CAG in the council of the BCCI would be governmental interference and would lead to suspension from ICC!
Apart from such tactics, cunning attempts were made at influencing public opinion against the court, this was done by claiming that tours would be cancelled and IPL would not be cancelled. An atmosphere was created whereby it seemed that Indian cricket and not BCCI’s corruption was being attacked by the court.
Justice T.S. Thakur was not intimidated by the blatant defiance of the BCCI. He issued an order removing both Anurag Thakur and Ajay Shirke. Now, time will alone will only tell the outcome of the Court’s interference in the BCCI.
In another judgement, Chief Justice Thakur, interpreting section 123 (3) of the Representation of Peoples Act, 1951, held with Justice Madan B. Lokur, Justice Bobde and Justice N. Rao that any appeal by a candidate to vote on the grounds of race, religion, caste, community or language would be recognised as a corrupt practise and thereby the election could be declared void.
However, the minority opinion written by future Chief Justice D.Y. Chandrachud, made the important point that the constitution recognises the history of discrimination and social movements on religion, caste and language. And that the Majority’s interpretation given to section 123 (3) would limit the candidates right to speak on legitimate concerns arising purely from the fact that a person belonged to a social group. That democracy would be reduced to an abstraction if the judiciary was to approach narrowly the politicians right to speak on religion, language and caste.
Though, Justice Thakur correctly understood the significance of secularism; The minority judgement’s interpretation recognising the importance of allowing debate on identities of peoples without the judiciary recognising this act as corrupt, seems better adapted to Indian secularism. The repercussions of this judgement would be understood soon in view of impending elections.
Justice Thakur’s legacy in preserving judicial independence will be remembered for time to come. His orders that escaped the public gaze but protected the rights of the have nots will go a long way in upholding the promise of justice. He was truly a product of the national movements ideals of equality, democracy and secularism.
In his farewell, he quoted Iqbal saying "Jahan Main Ahaan Main Ahl-e-Iman Soorat-e-Khrsheed Jeetay Hain, Idhar Doobay, Udhar Niklay, Udhar Doobay Idhar Niklay" (In the world, the people of faith live like the sun; here they sink, there they arise, there they sink, here they arise!). I hope we see him rise again, in a role where he yet again can serve the people of India.