‘How can the party blame the government for the electoral loss when it was controlling the said government?’

Dr Hans Raj Bhardwaj, former Governor and law minister, says the Judicial Appointments Commission is flawed and can hurt the judiciary’s independence 

Sanjay Kapoor Delhi 

Can you give us a background of the collegium that appoints judges?

The collegium system was established by the verdict of the late Justice JS Verma in the Supreme Court Advocates-on Record Association vs Union of India, 1993, case and two other cases together known as the Three Judges Cases. It was widely supported by the Supreme Court bar. Justice Verma’s judgment was based on the interpretation of the meaning of “consultation” with the Chief Justice of India. The result was a collegium, which evolved the meaning of judicial independence and made all judicial appointments, thus ruling out the role of the executive and legislature. Later, Justice Verma conceded that it was a wrong system. Even the lawyers that argued in favour of the collegium agreed that it was wrong. It needed a constitutional amendment or a larger bench to decide on this. Later, Justice Verma’s verdict was reinforced through Presidential Reference. The new Judicial Appointment Commission is flawed too. You have three private persons in it, which can erode the freedom of the judiciary. Principles that underpinned judicial appointment have been ignored. Consultation undertaken by the Supreme Court and Chief Justice of India was the key aspect behind the appointment of judges. There is no scope for outsiders to appoint judges in the new commission. To remedy the problems of collegiums, they have brought in a bad law. They could have given power to the CJI to consult anyone. The key issue, in my reckoning, is judicial independence and we should do nothing to compromise with that. We could have followed the example of the United States of America where judicial independence has developed into a set of institutions, where judges decide according to law rather than their own whims or the will of the others. I would like to repeat the five components of judicial independence of which constitutional protection of judges is critical. The five components are: the independent administration of the judiciary by the judiciary, judicial disciplinary authority over the misconduct of the judges, the manner in which conflict of interest is addressed and the assurance of effective judicial decisions. This would have been so much more effective a system than what has been brought in by the new government. 

Why do you think the Congress party lost the parliamentary elections?

The Congress party suffered electoral reverses due to its failure to provide an effective machinery to combat issues like corruption and poor governance. The party had no ideas or a campaign to resist the opposition. After losing the elections, there has been no effective review of the ailments that unleashed havoc on the party. The proper way would have been to invite Congress leaders and engage in a free and fair discussion to find out the reasons for the loss. This was not done. An exercise like this would prevent further reverses.
A major cause for worry is that the Congress is losing workers and leaders in each state. We have to ask why no fresh blood is joining the Congress and find out reasons why the Congress is losing enthusiasm to fight the forces that are destroying the pluralistic culture of society. There is a real threat that is staring at society and it is important for the Congress to be vigilant. I must tell you that there is a large number of senior Congress leaders who are willing to contribute in the revival of the party, but the present leadership has to show some interest rather than sweeping all problems under the rug. The Congress cannot be a party controlled by a few people who have failed time and again. This reversal has given us an opportunity to review the entire gamut of issues facing the party, but our party leadership sees no evil. 

The Antony Committee has submitted its report on why the party lost. What are your comments?

I have not read the report, but we must remember why the party lost. The party was criticised on various counts of corruption and lack of transparency and leadership. The Congress was defensive and did not fight communal forces effectively. Due to the failure of the party to connect with the masses, we saw them deserting the party in the elections. What needs to be recognised is that the Congress is not a small party, but a movement. Even in defeat, it got about 10 crore votes. The responsibility of the leadership is to revive the spirit of the national movement that was visible when it was led by Nehru, Gandhi and Sardar Patel. These tall leaders captured the imagination of the masses and the Congress won elections for so many years.
The key issue is the fight against communalism. If you read the history of the Congress party, you realise that the party’s ideology has been defined by the fight between secular and communal forces. Gandhi and Nehru put up a trenchant resistance against communal forces and laid the foundation for a secular India where people from different religions coexist and actualise their potential. What’s happening now is that communal and divisive forces are taking over our institutions. This is a difficult time for the country. Our democratic structure is under threat. All secular forces should work hard to preserve the plural character of society otherwise it will be a catastrophe. 

But the Committee also claims the debacle was due to the failure of the government, and not the party. What do you think?

This is not true! How can the (Congress) party blame the government for the electoral loss when it was controlling the said government? When I say it, I say it with confidence as I was a minister in the UPA government. Prime Minister Manmohan Singh had no role in picking his colleagues. Everything was done by the party president. I want to reiterate that PM Singh was the most honest man that the party could have. He is a man of integrity. His image has been vitiated by the conduct of his own colleagues. Everything was decided by the party. There was a core committee that had the PM and party leaders that decided everything. So how can the PM be blamed? 

As Governor of Karnataka, you effectively fought the forces of hatred. What are your views on Love Jihad?

Communal forces are spreading hatred amongst communities. Love Jihad is an outcome of this venom that is being spread in society. I remember former Chief Justice Hidayatullah married a Hindu lady. Both practised their respective faiths. What was wrong with that? These forces of hate are injecting intolerance in society for their own gains. I dealt with it severely in Karnataka and made the state government act promptly against those engaged in this.  

 

This story is from the print issue of Hardnews: SEPTEMBER 2014

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