REWIND
New Delhi, 13 October 2022
Appointment of Chief Justice
By Inder Jit
(Released on 7 February, 1978)
Top Government leaders are embarrassed by the continuing
speculation in the press in regard to the choice of India’s next Chief Justice.
The appointment of a Chief Justice is undoubtedly a matter of great public
importance. No one can reasonably take exception to a discussion in regard to
the best manner of re-establishing healthy convention which would both uphold
and strengthen the independence of the judiciary. However, objection is taken
to the manner in which certain names have been bandied about and erroneous
impressions created. One report would have us believe as though a decision has
been taken to have an outsider as the new Chief Justice. Some others have
sought to convey the impression that the new Chief Justice will be from within
the Supreme Court itself and that the choice has already fallen on Mr. Justice
Chandrachud in his capacity as the senior-most puisne judge.
No decision has been taken so far. A couple of Janata leaders did try to broach the issue at
the recent meeting of the party’s Working Committee in Bangalore. However, the
reference was casual and in the nature of loud thinking. This happened when
there was a brief, unexpected pause in the deliberations and the Committee was
constrained to wait for copies of the final draft of the proposed poll
manifesto entitled: Call to the Nation. Significantly, Mr. Morarji Desai, Mr.
Charan Singh, Mr. Jagjivan Ram maintained judicious reticence. One
irrepressible Union Minister alone chipped in briefly. There was thus no
question of any “dominant opinion” at the meeting that those who had opposed
the citizens and favoured the State in the famous Habeas Corpus judgement
should not be considered for the office of Chief Justice. Nor was there any
“unanimous” assertion that the possibility of inducting an outsider be examined
under Article 124 (3) which empowers the President to appoint “a distinguished
jurist” as a judge of the Supreme Court.
Likewise, the issue has not been considered so far by the
Cabinet or any of its Committees. Some senior ministers have, no doubt,
informally exchanged views on the subject with their close associates in the
Janata Party. Expectedly, due notice has been taken of the views expressed by
eminent jurists, the Supreme Court Bar Association and leading publicmen. But
here, too, the discussion has been in the nature of loud thinking. In fact,
senior partymen like Mr. Shyam Nandan Mishra, Deputy Leader of the Janata Party
in Parliament, favour a debate on the subject at the party level. Unfortunately,
this has not been possible despite the fact he and like-minded Janatamen
consider the issue to be vital enough for an emergent inter-session meeting of
the Parliamentary party or at least of its executive. Everyone is now involved
in the poll battle and there is little chance of a timely get-together. The
present Chief Justice is due to retire on February 22.
Opinion among top Janata leaders is divided. A powerful
section is one with Mr. M.C. Chagla and others in Bombay and New Delhi. They
question the desirability of appointing Mr. Justice Chandrachud as the next
Chief Justice on the principle of seniority in view of his judgement in the
Habeas Corpus case. How can anyone, they ask, who had sided with the State and,
in effect, reduced the courts to non-courts be elevated to India’s highest
judicial office. Mr. Jayaprakash Narayan and the New York Times are
aggressively quoted time and again. JP, it is recalled, went on record saying
that the “the Habeas Corpus judgement has put out the last flickering candle of
individual freedom.” The New York Times while asking India to raise a monument
to Mr. Justice H.R. Khanna for his courageous stand observed that the four
judges would be remembered “only in infamy.”
Two leaders recalled at the Bangalore meeting of the Janata
Party’s Working Committee now, prior to the Supreme Court Judgement, as many as
nine High Courts, including Allahabad, Bombay and Delhi, and 39 High Court
judges had held that the habeas corpus petitions were maintainable. These
judges, it was pointed out, had boldly upheld the rule of law when there was no
prospect of the Emergency ever being lifted. Many of them had even suffered
great indignities and hardships for their stand. Those inclined to make an
in-depth study could also have pertinently quoted what Jawaharlal Nehru said on
the quality and character required of Supreme Court judges while speaking in
the Constituent Assembly on May 29, 1949. He said: “It is important that these
judges should be not only first rate but should be acknowledged to be first
rate in the country and of the highest integrity, if necessary, people who can
stand up against the executive Government and whoever may come in their way.”
A dominant section among the Janata leaders (in the Cabinet
and outside) concede that there is much force in what Mr. Chagla and others have
to say. However, they feel that the appointment of the Chief Justice must be
insulated from official predilections and healthy conventions re-established.
They, therefore, prefer to go along with the Supreme Court Bar Association and
its resolution adopted by 150 votes to 56 on January 23. The resolution, moved
by the former Attorney General, Mr. C.K. Dapthary, and seconded by the former
Union Law Minister, Mr. A.K. Sen, expressed the view that “it would be
detrimental to the principles of democracy and to the maintenance of
independence of the judiciary if the well settled convention of appointing the
senior-most judge as the Chief Justice of India is not restored.”
Interestingly, this view is also supported by leading Congressmen, including
former Ministers.
These Janata leaders, moreover, emphasis that every care
must be taken to ensure that nothing is done which ultimately harms the very
cause sought to be upheld. A judge, according to them, must be judged by his
“total personality” and not by any single judgement delivered by him. To go by
one judgement alone would mean striking a blow in favour of a committed
judiciary and following Mrs. Gandhi’s ignominious precedent. “Judges”, said one
Janata leader, “must be encouraged to function without fear or favour. Let us
not strike terror.” These leaders also draw attention to the Doctrine of the
Political Question which has evolved over the years in the United States. Under
the doctrine, political questions are to be eschewed for two good reasons. An
expedient judgement, it is said, damages the principle. A principled judgement,
on the other hand, damages the court. Thus, according to these leaders, to
expect the Supreme Court to save democracy in a head-on confrontation with an
all-powerful executive is to ask for the moon.
The office of the Chief Justice is
of crucial importance in upholding the independence of the judiciary and, what
is more, in ensuring fair play and justice. There is no gainsaying the fact
that the Chief Justice is only the first among equals. True also, that he and other judges
have the same right insofar as the work of the Supreme Court is concerned. But
there is one vital difference. The Chief Justice as the head enjoys the sole
prerogative of forming benches and distributing work among colleagues. Veterans
among top legal luminaries point out that this “extra function” of the Chief
Justice is crucial. A Chief Justice could always constitute a bench in a manner
so as to load the dice in favour of a particular view. The Chief Justice, after
all, knows the views of his colleagues in most cases. One veteran legal
luminary told me: “I recall a Supreme Court judge once livid with anger for
being kept out of a bench formed to hear an important matter. But then he added:
“I knew the Chief Justice would keep me out. My views do not suit his.”
Quiet efforts, therefore, continue to resolve the dilemma
and find an agreed solution. Among other things, the appointment of an
“outsider” is being pressed hard as the only way out of the impasse. A few
names have been advocated, including those of Mr. Nani Palkhivala and Dr.
Nagendra Singh, Acting President of the World Court. Both have the required
stature. But there are certain difficulties in regard to the two proposals,
apart from their own inclinations and the question of advisability in the
larger national interest. Dr. Nagendra Singh would, for instance, be required
to retire next year if appointed Chief Justice on attaining the age of 65.
There is no age limit for World Court judges and his nine-year term ends in
1982. (Pakistan’s Mohd. Zafrullah Khan continued as a judge of the World Court
for two terms until he was 80). What is more, Dr. Nagendra Singh’s forte is
international law. Incidentally, a World Court judge gets a tax-free salary of
$50,000 per year besides perks – and a pension of $ 25,000 on retirement.
Many agree that an ideal solution would be to find a
constitutional way to appoint Mr. Justice H.R. Khanna as the Chief Justice and
to give one of India’s greatest judges his rightful due. This could be done by
amending the Constitution to raise the retirement age of Supreme Court judges
to 70 years, as has been demanded for some time. An acting Chief Justice could
be appointed for the time being. But there are practical difficulties in
amending the Constitution and the choice before the Government is strictly
limited --- between elevating Mr. Justice Chandrachud and appointing an
outsider. Happily the Union Law Minister, Mr. Shanti Bhushan, is reportedly
acting in accordance with Article 124 of the Constitution in letter and in
spirit. He is believed to have consulted all Supreme Court judges and more than
half the Chief Justices of High Courts on the issue --- and is expected to
complete the process soon. Let us hope a consensus will emerge in the best
national interest. ----INFA
(Copyright, India News and Feature
Alliance)
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