REWIND

New Delhi, 27 October 2022

Judiciary and Restraint

By Inder Jit

(Released on 21 March, 1978)

Everyone today swears by the independence of the Judiciary. Happily, no one talks any longer of committed judges. However, a question which needs to be asked is: are we doing enough to uphold and strengthen the judiciary and its independence? True, the Janata Government at the Centre restored last month the well-settled convention of appointing the senior-most judge as the Chief Justice of India. The decision to name Mr Justice Chandrachud as the new Chief Justice was hailed widely and helped to revive popular faith in New Delhi's commitment to an independent judiciary. But a great deal more remains to be done both by the Government and the Opposition parties. Healthy conventions have yet to be established in regard to the sound concept of judicial aloofness. Likewise, we have still to build up traditions of Parliamentary restraint vis a vis the judiciary. It is not enough that the judiciary is independent. It must also be helped to appear independent.

These thoughts are prompted by a recent happening in the Rajya Sabha which, alas, has not attracted deserved attention. On Tuesday last week, Congressmen accused the Union Government with interference in the independence of the judiciary. They alleged that the Chief Justice of Allahabad High Court, Mr Justice Chandrasekhar, had been arbitrarily transferred to Karnataka High Court so as to enable Mr Justice Satish Chandra, brother-in-law of the Union Law Minister, Mr Shanti Bhushan, to be appointed Chief Justice of Allahabad High Court. In fact, Mr D.N. Dwivedi, the member who raised the issue, asserted that Mr Justice Chandrasekhar, who had been transferred from Karnataka High Court to Allahabad High Court during the Emergency without his consent, had not expressed a desire to go back and was “very happy” in Allahabad. Later members of the two Congresses, led by Mr Kamlapati Tripathi and Mr Bhola Paswan Shastri, walked out of the House in protest against “unsatisfactory replies” by Mr Shanti Bhushan.

What are the facts? Mr Justice Chandrasekhar did “request” a transfer, according to the letter which he wrote to the then Chief Justice of India in September last. The text of the letter was read to the House by Mr Shanti Bhushan who also explained how it was only fair to have acceded to Mr Justice Chandrasekhar’s request. Mr Justice Chandrasekhar, it may be recalled, was transferred to Allahabad as punishment for his independence. He had before him in Bangalore important habeas corpus petitions involving Mr Atal Behari Vajpayee, Mr L.K. Advani, Mr Madhu Dandwate and Mr Shyam Nandan Mishra. On four occasions at least he gave orders in favour of the petitioners and the Union Government was constrained to appeal to the Supreme Court. At one stage, Mr Justice Chandrasekhar even threatened to hold the then Attorney-General, Mr Niren De, guilty of contempt, forcing the Centre to fly Mr. Advani and two others from New Delhi back to Bangalore by a special plane. An unwell Mr. Vajpayee was in Bangalore already.

Mr Justice Satish Chandra, who was appointed a High Court judge on October 7, 1963, should have become Chief Justice of Allahabad High Court on May 9, 1977 in the normal course when Mr Justice K.B. Asthana retired as Chief Justice. But the transfer of Mr Justice Chandrasekhar to Allahabad during the Emergency blocked his elevation; Mr Justice Chandrasekhar became a High Court judge on September 20, 1963 and was thus 17 days senior to Mr Justice Satish Chandra. “Two days before Mr Justice Chandrasekhar took over as Chief Justice on May 9, 1977, Mr Justice Satish Chandra resigned. Fortunately for him, he resigned with prospective effect from August 1, 1977. (The procedure, I am told, is not unusual as it allows the judge to take care for his leave etc; Mr. Justice H.R. Khanna, resigned on January 29, 1977. But the resignation became effective from March 12, 1977.) On July 15, however, he withdrew his resignation and sat on the court till July 31. But on August 1 Mr. Justice Satish Chandra’s right to withdraw his resignation was challenged by a lawyer through a writ petition.

A five-men bench of the Allahabad High Court allowed on October 28, 1977 the writ petition by a majority of three judges to two and upheld the contention that the resignation of a judge became effective as soon as it was submitted. Mr. Justice Satish Chandra was consequently restrained from acting as a judge. But he and the Union of India, which was impleaded as the appointing authority, went in appeal to the Supreme Court. On December 8 last, a five-man bench of the Supreme Court, head by Mr. Justice Sarkaria, allowed the appeal by a majority of four judges to one. Mr. Justice Satish Chandra was thereafter allowed to function as a judge, and his way cleared for appointment as the new Chief Justice of the Allahabad High Court in view of his position as the senior-most puisne judge. Incidentally, Mr. Justice Satish Chandra is senior to 13 Chief Justices of High Courts out of a total of 18. He is also senior to seven of the Supreme Court’s thirteen judges.

Was the Union Law Minister guilty of nepotism, corruption and “high conspiracy” in the whole drama as alleged in the Rajya Sabha? A few facts are of interest. First, Mr. Shanti Bhushan could have helped his brother-in-law to become the Chief Justice even on May 9 last year in case he so desired. Opinion in New Delhi in April last favoured early repatriation to their home states of all the judges transferred during the Emergency without their consent. Second, Mr. Justice Chandrashekhar put in his request for a transfer back to Karnataka High Court in September --- well before the Allahabad High Court gave its decision on the writ petition against Mr. Justice Satish Chandra; the Supreme Court’s decision came only on December 8. Third, all matters relating to the case of Mr. Justice Satish Chandra, beginning with his resignation from the High Court and ending with the recommendation of the UP Chief Minister that he be appointed Chief Justice, were directly placed before the Prime Minister and were dealt by him, as Mr. Shanti Bhushan candidly told the Rajya Sabha.

The manner in which the Opposition raised the matter in the Rajya Sabha symbolizes an unhealthy aspect of our parliamentary functioning. Various issues are raised in the House straightway and sensation created ignoring time-honoured practices adopted in the Commons. Initially, Mr. Dwivedi and other Congressmen could have taken advantage of Parliament’s inner lobby and first raised the matter with Mr. Shanti Bhushan informally. In case they were unable to get satisfaction, they could have then taken up the matter with the Prime Minister. The sensitive issue should have been brought up in the House only if the Prime Minister had also failed to give them satisfaction. In the House, too, the Opposition could have gracefully accepted the facts, once Mr. Shanti Bhushan read out the text of Mr. Justice Chandrashekhar’s letter. Indeed, there was a good case for the Opposition to respond positively to Mr. Biju Patnaik’s interjections: “It’s time to apologise.”

Apart from parliamentary restraint, we also need to build up a tradition of judicial aloofness which is necessary if the judiciary is also to appear independent. No one today can justifiably subscribe fully to the old British dictum that a judge should live like a hermit and work like a horse. Nevertheless, few can be happy with the manner in which even some of the highest among our judges have conducted themselves over the years. I remember a former Chief Justice of India who took enthusiastically to New Delhi’s diplomatic whirl and was, on occasions, seen to make a bee-line for the bar on arrival. Some years ago, I saw a High Court Chief Justice seeking an introduction to the Union Home Minister at a wedding reception in New Delhi and, after bending low like a seasoned durbari, Saying: “Sir, I have been waiting for this great privilege and honour for a long time.” I have also witnessed a Chief Justice of India throw all discretion to the winds and talk animatedly at a Rashtrapati Bhavan reception in turn to the Law Minister, the Home Minister and, finally, the former Prime Minister virtually on the eve of a major judgment by the Supreme Court on a matter vitally concerning the Union Government.

The standards have continued to fell and it is not uncommon to find Supreme Court judges go out of their way to cultivate politicians. Not long ago, a veteran legal luminary was shocked to find senior Union Ministers as fellow guests at an informal dinner hosted by a Supreme Court judge. Things, of course, virtually touched their lowest standards during the Emergency when some judges went all out to prove their commitment to Mrs Gandhi and her regime. Clearly, the new Chief Justice of India, Mr Chandrachud, needs to take a good look at the whole problem and set up new standards and norms of conduct. He could consult not only some of his predecessors but also eminent veterans among the legal luminaries. One such veteran even objects to the Chief Justice of India attending state banquets every other day and lining up with Union Ministers to greet the visiting dignitary. “Let him have a banquet of his own for a visiting Chief Justice only" he says.

Much else will also need to be done to restore the image and independence of the judiciary, eroded increasingly over the past thirty years in various ways by an executive which exploited, among other things, the absence of a ban on the appointment of retired judges to influence them and become supreme. In a classic case, a Supreme Court judge accepted Chairmanship of the Law Commission, a body directly subordinate to the Law Ministry, some months prior to retirement. Incredible as it may seem, he attended the Supreme Court in the morning and the Commission in the afternoon. There is thus need on all sides to review the matter and take steps to strengthen the judiciary as a vital limb of our democracy. Nothing should be done by anyone which either erodes its independence or unfairly tarnishes its image. What we are is undoubtedly important. Much more important, however, is what we appear to be. ---INFA.

(Copyright, India News & Feature Alliance)

New Delhi

March 18, 1978.