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Mainstream, VOL LVI No 21 New Delhi May 12, 2018

Indian Judiciary since 1993: Independent but Unchecked and Unbalanced

Sunday 13 May 2018

by Kunal Ghosh

Our Constitution-makers decided to follow the western model of parliamentary democracy in which there are three main organs of the state, the executive (that is, the government run by a Council of Ministers) and the legislature (that is, the Parliament) and the judiciary (that is, the system of courts headed by the Supreme Court). Their powers are separated and they are independent of each other. However, this independence is not absolute; it is subject to the “checks and balances” that each is to apply on the other two. A properly functioning state has these three organs countervailing each other in a dynamic equilibrium.

In the ‘S. P. Gupta vs Union of India: Transfer of Judge’ case of 1981 and subsequently in the “Supreme Court Advocates-on-Record Association vs Union of India’ case of 1993, the learned judges of the Supreme Court (abbreviated to SC hereafter) gave such verdicts that had the effect of taking away all powers from the executive, read the government, to appoint or transfer judges. They vested these powers in a Collegium system created by the SC itself. The Indian Constitution had given these powers to the Parliament which was exercised by the executive appointed by the Parliament. Needless to say, the Collegium system finds no mention in the Constitution.

Any action of the executive, that is, the government can be challenged in a court of law, and in case of an appeal, the matter is finally dealt with by the SC; it may uphold the action of the government or declare it void. Thus there is a check on the executive that is exercised by the SC. Previously the executive had the powers to appoint and transfer the judges; but now since 1993 the executive has been deprived of that power. Therefore, there is no check the executive can apply on the judiciary.

The legislature (that is, the Parliament) still has one check on the judiciary—it can impeach a judge. But impeachment is an extreme step and the procedure is lengthy and made intentionally cumbersome by our founding fathers, so that no one can bring an impeachment motion frivolously. They intended that the extreme step be reserved for the rarest of the rare case. The judiciary, however, has a check against the legislative, in the sense that the SC can strike down a law passed by Parliament. The sum total of the current situation is that the legislature, except the extreme step of impeachment, has no mechanism of applying checks and balances against the judiciary, so necessary for smooth day-to-day functioning of the state.

It is true that many previous governments have misused their powers against the judiciary by arbitrary and motivated transfers and other measures. No doubt that reform of the system had been necessary. The National Judicial Appointment Commission (NJAC) Bill, which was unanimously passed by the parliament and the State legislatures, addressed the question of reform adequately. But the SC, in its present intransigent avatara, struck the Bill down, and since then there has been an impasse over the Memorandumof Procedure (MOP) for judicial appointments between the executive and the judiciary. The impasse has lasted over two years and is continuing. In the meantime several symptoms of malfunctioning of the judicial system have come to the fore.

In an article titled, ‘A Nascent Caste on the horizon: The Judicial Dynasties’, June 28, 2016, News Bharati English, web-link, I had drawn attention to two dynasties, the Thakur dynasty and the Chandrachud dynasty of the Supreme Court. Since that article was written, the Chandrachud dynasty has been strengthened by the transfer of Justice Dhananjaya Chandrachud from the Allahabad High Court to the Supreme Court. I missed a third one then. The present chief justice of the SC, Justice Dipak Misra, is the nephew (son of a brother, to be precise) of a Chief Justice of India of the previous generation, Justice Ranganath Misra.

For examples of Bhaai-Bhateejaa-vad or nepotism in judiciary, one should see an item, “Allahabad HC (abbreviation of High Court) Judgeship List: It’s All in the Family One-third of Short-listed lawyers are Related to Judges”, The Times of India, March 12, 2018, p. 9. This is not the first time that this problem has cropped up. Also In 2016 the Bar Association of Allahabad had complained and then Chief Justice of the SC, T. S. Thakur, rejected more than ten candidates, recommended by the Allahabad High Court, after a check by the Intelligence Bureau.

In a far more serious development, four senior most judges of the SC led by Justice Chalmeswar held a press conference in the national Capital in January 2018, and questioned the prerogative of the Chief Justice of India (CJI) to allocate ‘sensitive’ cases to different judges. This public attack on the CJI is unprecedented and against all norms and conventions. Further, it is against the service rules and the code of conduct. Yet, the CJI soft-pedalled the issue and the government took no step beyond certain Minsters making statements of disapproval. This emboldened the erring judges and since then there has been public criticism of the CJI by some SC judges. Two SC judges wrote letters to the CJI lamenting that the CJI “had not asserted the independence of the judiciary in the face of interference by the executive” and released to the press. Consider a hypothetical situation where a Cabinet Minister questions the prerogative of the Prime Minister (PM) to allocate portfolios; can the government function if this happens? Even then the PM is said to be only the first among equals, whereas the CJI is a rank superior in a definitive hierarchy, entitled to a higher salary.

Article 121 of the Constitution bars parliamentarians from discussing the conduct of a judge, except when an enquiry committee, appointed by the House, submits a report holding the judge guilty. It is obvious that the founding fathers intended to put the judges on a high pedestal and shield them from public criticism. This is because a societal perception of high dignity of the judiciary is essential for a democratic republic. How does the spectacle of senior SC judges publicly sniping at the CJI fit into this scenario?

In a further development a seven-party Opposition combine, on April 21, 2018, has brought an impeachment motion against the present CJI. This motion is well within the constitutional provisions although it smacks of a party-political thrust, because it comes in the wake of the dismissal by the SC of a Public Interest Litigation (PIL) for a fresh probe into the death of Justice H. B. Loya, who had been hearing a case against the President of the main ruling party, the BJP. As per convention the judiciary is never to be drawn into politics, but in the present atmosphere of free for all, the political parties have thrown all cautions to the wind.

As a result of all the listed above and many more misdemeanors on the part of judges of various High Courts, our judicial system as an institution is losing credibility in the public eye. The government should make immediate moves to stem the rot. The government should invoke Article 143 of the Constitution and make a Presidential Reference to the SC to seek clarification as to what remains of the much-vaunted “checks and balances” that the executive and the legislative wings are supposed to apply against the judiciary, the extreme step of impeachment being an unpractical measure for day-to-day functioning of the state. The President should ask: are the ‘checks and balances’ part of the basic structure of the Constitution or not? As of now, the judiciary in India is independent but unchecked and unbalanced.

Further, the government should advise the President to issue a stricture, that is, a sternly critical and censorious remark, against the four judges, who held the afore-said press conference in January 2018, for violation of the Service Rules and the Code of Conduct. Such a Presidential stricture would be without precedence, but an exceptional and unprecedented development requires an exceptional response.

Dr Kunal Ghosh, a retired Professor and Head, Aerospace Engineering Department, I.I.T., Kanpur, is a Visiting Professor, Mechanical Engineering, I.T., Nirma.

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