Rewind |Judiciary “bonded” or “free”

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By Madhu Dandavate | Written on 24 May 1985

Recently, Mr. Justice V.D. Tulzapurkar observed in the Supreme Court that due to favouritism by the Government in their appointments and transfers, the judges tend to become ‘sycophants’. This caustic comment has once more brought into focus the question of free judiciary.

One often hears about the talk of “committed” judiciary. What is the judge’s commitment except his commitment to the Constitution by which he swears when appointed? But when something more is read into the word “commitment”, one suspects that “committed” judiciary is a glorified name for the “bonded” judiciary. Ever willing to oblige the establishment for the favours it bestows on the judges in matters of appointments and transfers.

Article 124(2) of the Constitution states:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall be consulted.”

In the context of a free judiciary many questions arise. Are the constitutional provisions for consultation mandatory! Does the term ‘every judge’ include the Chief Justice also? Is consultation dependent on the desire of the President? Is it not preferable to replace the word ‘consultations by ‘concurrence’ so that appointments of judges are not made under the pressures of the executive?

The past experience does not warrant an inference that appointments of judges are made purely in a spirit of objectivity and on the basis of the norm of merit-cum-seniority. On 25 April 1973 Mr. Justice A.N.Ray was appointed Chief Justice of the Supreme Court superseding Mr. Justice K.S. Hegde, Mr. Justice A.N. Grover and Mr. Justice J.M. Shelat only because the earlier judgements of these three learned judges were irksome to the Government.

Sixteen judges in various High Courts were transferred during the Emergency to High Courts in distant places as a punishment for their interim orders and judgements inconvenient to the Government. Most of them could return to their original assignments only after the Emergency ended.

Mr. R. Dayal, Metropolitan Magistrate of Delhi, who gave orders for Mrs. Indira Gandhi’s release was later on appointed a judge in the Sikkim High Court superseding 30 persons in the Delhi judicial service.

Mr.Justice Shukla who was given temporary appointment as Chief Justice of Allahabad was confirmed only when he regularized 16 pending appointments which were opposed by his predecessor Chief Justice, Mr. Agarwal.

Till the Chief Justice of the Madhya Pradesh High Court, Mr. G.P.Singh retired, 10 appointments in the court were held up and they were confirmed only when Mr. Oza became the Chief Justice. It is reliably learnt that Mr. Justice Oza is now tipped for appointment in the Supreme Court.

In January 1977, Mr. Justice Beg was appointed Chief Justice of India, superseding his eminent senior Mr. Justice H.C. Khanna, who had given a courageous dissenting judgement in the famous MISA case during the Emergency upholding the right of the detenue to seek judicial remedy even during the Emergency.

Under the pretext of national integration the Government is seeking to ensure that one-third of the judges in every High Court are from outside the concerned States. This will again give a lever to send out of state the “inconvenient” judges endangering the freedom of judiciary.

According to established conventions the transfer of judges ought to be with the consent of the concerned judges. But to circumvent these conventions the former Union Law Minister had written letters to Chief Ministers of States to secure letters from judges that they were willing to be transferred. The Supreme Court had aversely commented against this in one of its judgements and the Chief Justice of India had also expressed his displeasure.

To ensure independence of the Comptroller and Auditor General of India and the members of Public Service Commission, our Constitution specifically provides that on ceasing to hold these post the incumbent should not hold any office under the Government of the Union or a State. In the Constituent Assembly, Prof K.T. Shah had moved constitutional amendment prescribing similar restrictions on Supreme Court and High Court judges. Though his amendment was rejected, time has now come to introduce such an amendment provided of course the emoluments and pension facilities for the judges are adequately improved.

There is a move for bifurcation of the Supreme Court into a Constitutional wing and a wing dealing with non-constitutional problems. One sees in this move an effort to disturb majority in the Supreme Court against repeal of the Keshavanand Bharati judgement that has put a restriction on changing the basic structures of the Constitution. It is an open secret that the Government desires to get this judgement repealed. The split up of the Supreme Court can be utilized to manipulate majority in favour of the Government’s approach to the Keshavanand Bharti judgement. That is an additional reason to oppose bifurcation of the Supreme Court, besides of course the need to preserve its unity and integrity.

If people are to get expeditious and fair justice from the Courts, it is highly essential that the present congestion of work in High Courts and the Supreme Court is considerably reduced. The extent of backlog of pending cases in the Supreme Court is revealed through the reply to an Unstarred question No.6495 in the Lok Sabha on 14 May 1985. The question was regarding the number of full Bench constitutional cases pending in the Supreme Court which have not been heard even once in 12 years. The reply by the Law Minister was: “As per information furnished by the Registry of the Supreme Court, there are 110 such cases”. The number of pending cases at various courts is in lakhs. With such a heavy backlog, can citizens expect a speedier and fair justice?

It is suggested that to reduce the congestion of work in High Courts and the Supreme Court, four National Tribunals should be constituted through appropriate legislation. The National Tribunals can be: one for the income tax cases; the second for revenue matters such as excise, customs, sales tax etc., the third for labour disputes and the fourth for service cases. It is further suggested that each one of these National Tribunals should have three judges with the status and emoluments of Supreme Court judges. If a statutory provision is made that matters coming up before National Tribunals will not be taken up by High Courts and the Supreme Court, the pending cases can be settled expeditiously.

To ensure effective judicial reforms the Ministry for Justice should be completely under the Law Ministry and should have no truck with the Home Ministry at all. To a very great extent this reform has been already introduced.

The freedom of judiciary often suffers due to confrontation between various limbs of the State. Such confrontation can be scrupulously avoided if people, Parliament and the Supreme Court realize their respective jurisdiction prescribed by the Constitution and refrain from encroaching on each other’s ambit of functioning.

According to our Constitution people are sovereign in electing a representative Government, Parliament is supreme in enacting laws and amending the Constitution but the Supreme Court is supreme in deciding whether the laws enacted and amendments made by Parliament are within the ambit of the Constitution. If these limitations are borne in mind, the judiciary as well as Parliament can function effectively without getting entangled in mutual controversies and recriminations. In our democracy a free judiciary, a vigilant Parliament, a fearless press and an enlightened public opinion are the real checks and balances. Thus ensuring the freedom of judiciary is a fundamental reform that our judicial system needs and it must receive the nation’s urgent attention for citizens can never be free when judiciary is “bonded”.

 

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