The Communist Government of Kerala & the State Judiciary: A case of Quid Pro quo relationship?

Written By

Ramakrishnan

Much has been said about how the present government in the centre is "influencing" judiciary by rewarding judges with post-retirement appointments for their favourable judgements. Recently, the entire opposition was up in arms against the government when the President of India nominated ex-Chief Justice Ranjan Gogoi to the Rajyasabha. Similar allegations were raised when Justice P. Sathasivam was appointed as the Governor of Kerala.

The Communist Party of India (M) was the loudest among the critiques of the central government. Its Secretary Sitaram Yechury alleged that the centre's actions made the apex judiciary "not independent but an executive judiciary". He asked, "What must one make of a government that does this?" It is important to see how a communist government fares when it comes to upholding the independence of the judiciary. Fortunately, there is only one place one needs to look, and that is Kerala. The Left Democratic Front is in power in Kerala since May 2016.

Ex-Chief Justice Antony Dominic' appointment as Chairman of KSHRC

On June 2nd, 2018 Justice Antony Dominic was appointed as the Chairman of the Kerala State Human Rights Commission. He had retired as the Chief Justice of Kerala only three days before.

While Justice Antony Dominic was the Chief Justice, on March 7th, 2018 Justice Kemal Pasha, a puisne Judge of Kerala High Court ordered CBI investigation into the brutal murder of Shuhaib, a Congress party worker by CPI(M) cadres in Kannur District of Kerala. Justice Kemal Pasha held that involvement of top leadership of the Communist Party in the murder could not be brushed aside. In the judgment, Justice Kemal Pasha commented on the large number of political murders in Kannur District by saying that, "It is also an open secret that the workers of such political parties at the lower strata, who have been suffering a brainwash, are being used as pawns in the hands of political leaders for exterminating their political opponents. There must be an end to it. Let this case be an eye-opener for such persons." This observation about a 'class divide' within the Communist Party was a massive embarrassment to the government and the party.

The next day, i.e. on March 8th, Justice Kemal Pasha started the final hearing of the challenge by P. Jayarajan, (CPI(M) strongman from Kannur District), against charging of offences under the UAPA Act against him in the Kathiroor Manoj (RSS worker) murder case, that was being investigated by the CBI. By the end of that day, the arguments of the petitioner's lawyer who had come from Delhi were over, and the Additional Solicitor General of India had started his arguments for the CBI. It was clear to everyone present in Court that Justice Kemal Pasha was not convinced about the petitioner's case. The matter was adjourned to March 13th, based on convenience of lawyers.

The very next day, i.e. on March 9th, the roster of the Kerala High Court was modified by Chief Justice Antony Dominic. Justice Kemal Pasha was taken out of criminal jurisdiction and put into civil jurisdiction. Though many modifications were made on that day, barring Justice Kemal Pasha's, most other changes were cosmetic.

Prior to that, in March 2018, the Kerala High Court collegium headed by the then Chief Justice Antony Dominic recommended the name of the son in law of the Advocate General of Kerala for elevation as a judge of the High Court. The Advocate General is a close confidant of the Chief Minister. The Supreme Court collegium, after consideration of "relevant factors", remitted the proposal for elevation of that advocate back to the Kerala High Court.

Justice Kemal Pasha retired in May 2018. He said during his official farewell speech, in context of the recommendation of names for elevation by the collegium headed by Justice Antony Dominic, that most of the judges of the court including him had not even seen the faces of some of the persons recommended for elevation. Most interestingly, as if he knew what was coming, Justice Kemal Pasha spoke against judges accepting post-retirement jobs and said that such judges do not dare to invite displeasure from the government when nearing their retirement. Post his retirement; Justice Kemal Pasha also commented that the above episode of change in the roster by the then Chief Justice Antony Dominic was 'untimely'.

Shockingly, a private news channel reported almost a month before the retirement of then Chief Justice Antony Dominic that an agreement had been arrived at between Justice Dominic and the Chief Minister in a secret meeting between both of them in a hotel in the state capital. The report even mentioned the name of the hotel and the date of the meeting.

Thereafter, a week before his retirement, the Justice Dominic heading a division bench dismissed a writ petition seeking CBI probe into killing of seven RSS workers, allegedly by CPI(M) workers, calling it a 'political interest litigation'. This case involved high stakes for the government as well as the party since top leaders of the party were alleged to be involved in the conspiracy behind the murders.

These glaring aspects indicate that the cushy posting given to Justice Antony Dominic by the state government could be a brazen case of quid pro quo.

Justice P. Ubaid's appointment as Chairman of REAT

Now, in the middle of the nationwide lockdown, Justice P. Ubaid has been appointed as the Chairman of the State Real Estate Appellate Tribunal, about six months after his retirement as a puisne judge of the Kerala High Court. Justice Ubaid had confirmed the discharge of the Chief Minister from the twenty-year-old 'Lavlin corruption case'. An adverse order, in that case, would have drastically affected the political career of Chief Minister, as also the future of the party in the state which has no strong second-rung of leadership. The Supreme Court has admitted the appeal filed by CBI against the said order passed by Justice Ubaid, which is pending a final hearing.

Interestingly, in an interview to a news channel, while answering allegations regarding appointment being a quid pro quo for helping the Chief Minister, Justice Ubaid claimed that he will accept his appointment since his appointment is not political but from a "panel prepared by the High Court". As per Section 46(2) of the Real Estate (Regulation and Development) Act, 2016, the Chairman of the Appellate Tribunal is to be appointed by the state government in consultation with the Chief Justice of High Court or his nominee. Only a retired or a sitting judge of a High Court can be appointed as the Chairman of the Tribunal.

As it turns out, a writ petition had been filed before the Kerala High Court in the year 2019 seeking speedy constitution of the Real Estate Regulatory Authority and its Appellate Tribunal. By a judgment in January 2020, the High Court disposed of the writ petition while recording submissions of the state government that, "Accordingly Government had consulted Registrar General, High Court of Kerala for furnishing a panel of Hon'ble Judges for appointment as Chairperson of Real Estate Appellate Tribunal. The Registrar General has furnished a panel of Hon'ble Judges, in the order of seniority, for consideration to the post of Real Estate Appellate Tribunal under Section 46(2) of the Real Estate (Regulation & Development) Act, 2016."

If this is how the state government is reading the word 'consultation', then the job of the Chief Justice or his nominee is reduced to merely furnishing a list of willing candidates. It is well known how the word "consultation" appearing in Articles 124, and 217 of the Constitution of India regarding the appointment of Judges of the Supreme Court and High Courts have been interpreted by the Supreme Court of India. Clearly, the High Court has recorded the submissions of the state government without applying its mind to what the government has done.

Hence, far from the claims of high moral ground citing appointment from a panel prepared by the judiciary, it appears that Justice Ubaid's appointment has been made by the state government in violation of the law. The possibility of a quid pro quo stares us in the face.

When it comes to fostering an independent judiciary, the words and deeds of communists do not match. The fact that they are never confronted about it makes it worse.