Justice Jayant Patel’s Resignation Marks A Moment of Crisis for the Judiciary

This is the fourth example of judges or candidates for judgeship paying the price for having contributed to rulings which went against the interests of those currently in power at the Centre.

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.

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. 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.

The transfer of Justice Rajiv Shakdher from the Delhi high court to the Madras high court. 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 Abhay Mahadeo Thipsay from the Bombay high court to the Allahabad high court. 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.

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.

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.