REWIND
New Delhi, 4
April 2024
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; 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 Chandrashekhar 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 1977, Mr
Justice Satish Chandra resigned. Fortunately for him, be resigned with
prospective effect from August 1, 1977. (The procedure, I am told, is not unusual
as it allows the judge to take care of his leave etc; Mr Justice H.R. Khanna,
for instance, resigned on January 20, 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-man 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 become 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, five-man bench of the
Supreme Court, headed by Mr Justice Sarkaria, allowed the appeal by s 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 Now 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
Chandrasekhar 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 Shushan candidly told the Rajya Sabha.
The
manner in which the Opposition raised the matter in the Rajya Sabha symbolises
an unhealthy aspect of our parliamentary functioning. Various issues are raised
in the House straightaway 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 Chandrasekhar’s letter. Indeed, there was a good case
for the Opposition to respond positively to Mr Biju Patnaik’s interjection: “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 beeline for
the bar on arrival. Some years ago, also I saw 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 darbari, 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 Bhawan reception in turn to the Law
Minister, the Home Minister and, finally, the former Prime Minister virtually
on the eve of a major judgement by the Supreme Court on a matter vitally
concerning the Union Government.
The standards have continued to fall 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 guest at an informal dinner hosted by
Supreme Court judge. Things, of course, virtually touched their low standards
during the Emergency when some judges went 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 conducts. He
could consult not only some of his predecessors
but also eminent veterans among the legal luminaries. Once 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)
|