“Explain the Legal Basis of Your Open Threat in a Public Forum”

Honourable Minister Shri Kiren Rijiju,

We are a group of former civil servants of the All India and Central Services who have worked in the Central and State Governments during our careers. As a group, we have no affiliation with any political party but believe in impartiality, neutrality and share a commitment to the Constitution of India.

We write to you today in response to comments you made on various occasions and very recently at the India Today Conclave on March 18, 2023. Your statements that day are the latest in what is emerging as a concerted attack by the government on the collegium system of appointments, the Supreme Court of India and, ultimately, on judicial independence. We unequivocally condemn this onslaught.

We are puzzled by your repeated criticisms of the Supreme Court collegium while simultaneously stating that there was no confrontation between the government and the Supreme Court. To the average Indian, there does, indeed, seem to be a confrontation. In the appointment of judges to the High Courts and Supreme Court it appears that it is the government that is stonewalling appointments.

Names forwarded by the collegium are left pending for years, only to be finally returned without approval. Candidates with distinguished careers marked by their commitment to due process and to constitutional norms are turned down by the government.

Rather than engage constructively with the Supreme Court and collegium, high offices of the executive such as yours, and that of the Vice President, have responded with venomous barbs. The government’s continued refusal to accept some candidates can only give rise to the suspicion that the underlying intention is to create a pliant judiciary.

It is no surprise that retired judges, senior lawyers, and experts have been expressing serious concern in the public domain on the urgent need to safeguard judicial independence. The process of determining judicial appointments goes to the heart of this independence. It is a testament to their commitment to the institution that retired judges of the Supreme Court and High Courts are not mute spectators to abrasive attacks on the judiciary.

These are individuals with distinguished careers of public service and unimpeachable integrity. Yet you have not hesitated to call them anti-Indian and have stated that a few retired judges are working in tandem with activists, groupings you described as “anti-India gangs” and attempting to influence the judiciary to “play the role of an Opposition party”.

When asked if any action would be taken against this so-called “anti-India gang”, you replied that “actions will be taken”, that “nobody will escape” and that “those who have worked against the country will have to pay a price”.

It seems to us that you are confusing the government with the country, construing criticism of the government as disloyalty to the country. You seem to believe that if a person disagrees with the views of the government, that is enough to permanently label him or her as “anti-national”.

Using that label, the government then initiates all manner of punitive action, and attempts to suppress dissent of any kind. Have you considered the implications of what you said in terms of the right to free speech under the Indian Constitution? You need to urgently explain the legal basis of your open threat in a public forum.

As the Law Minister, if you have concerns about opinions being expressed or discussions taking place in public fora, you can avail of multiple platforms and ways to respond, beginning with inviting dialogue. To label public-spirited citizens as an “anti-India gang” and threaten them with action which will exact “a price” rings sharply of authoritarianism, particularly in the absence of any attempt to dialogue or engage. These are abrasive statements unbecoming of your high post.

We recognise that there is need for continued deliberations on ways to improve the current system of judicial appointments, to deepen transparency and the rigour of the process as also diversity amongst appointees. However, preserving the independence of the judiciary is non-negotiable, and any sign of executive overreach cannot be accepted in a democracy.

We conclude by reminding you of a simple but cardinal truth: all organs of the State are bound by the Constitution of India and a government, simply because it is in a majority, cannot ride roughshod over Constitutional provisions regarding the separation of powers amongst the executive, the legislature and the judiciary. By doing so, you breach your own oath of office.