Friday, August 19th, 2022 14:29:12

Indian Judiciary at a Crossroads?

Updated: November 22, 2017 5:53 pm

On 10 November 2017 the Supreme Court of India witnessed an unprecedented drama.  A two-judge bench headed by Justice J. Chelameswar hearing a graft allegation plea involving a retired Odisha High Court judge ordered constituting a five-judge bench of the senior-most judges of the apex court to hear a plea for setting up a Special Investigating Team for the purpose.  The question of corruption in the higher judiciary turned into a showdown over jurisdiction within the apex court.  A five-judge constitution bench headed by Chief Justice Dipak Misra later in the day took strong exception to the order passed by the two-judge bench.  Overturning the order of the two-judge bench, it asserted that no bench can take up a matter unless allocated by the CJI who ‘is the master of the court.’

Further, the CJI-headed bench said that the allocation of matters by the CJI was the principle of law, judicial discipline and the decorum of the court.  The order passed by the five-judge bench said: ‘neither a two-judge bench, nor a three-judge bench can allocate the matter to themselves or direct the composition for constitution of a bench.’  It further added: ‘… there cannot be any direction to the Chief Justice of India as to who shall be sitting on the bench or who shall take up the matter as that touches the composition of the bench.  We reiterate such an order cannot be passed.  It is not countenanced in law and not permissible.’  Interestingly, the CJI also did not gag the media from reporting the case, saying ‘I believe in Freedom of Speech, Expression and the Press.’  Obviously, he wanted the matter to come out open in the public domain and talked about and discussed.  Indeed, this is a first of its kind incident involving the highest judiciary in India.

This raises questions regarding jurisdictions, propriety and courtesies within the court.  That the CJI is ‘the master of the court’ is an established maxim that must have been known to Justice Chelameswar, the senior most judge after the Chief Justice of India.  Why then the bench he headed passed an order that was not within its jurisdiction?  This would not be known in the public domain unless he himself decides to open up.  Also, it is better that he maintains a diplomatic silence over the issue, for a statement from him may lead to vitiating the atmosphere further.  The second question that arises is if there was any other option available to the CJI other than rescinding the order passed by the two-judge bench and asserting that he was the master of the court, a rule well-known to all.  Could this matter not have been resolved at an informal level by the two senior-most judges sitting together and resolving the matter that could have led to withdrawal of the order by the bench itself?  If yes, why this option was not exercised?  Obviously, there is prevailing tension between or amongst the judges within the Supreme Court of India that greatly diminishes lustre of the court.

We should also remind ourselves that over a year ago Justice Chelameswar had refused to take part in the meetings of the collegium that decides appointment of judges in the Supreme Court and High Courts in states.  He had shot off a letter to the then Chief Justice T.S. Thakur asserting that he would not attend the collegium meetings owing to a variety of reasons, particularly due to its ‘opaque and non-transparent’ mode of functioning.  He later ended his ‘boycott’ of the collegium and attended the meeting when Justice J.S. Khehar was the Chief Justice, but recorded his strong dissent against its decision to not elevate Justices K.M. Joseph (Uttarakhand High Court) and Manjula Chellur (Bombay High Court) to the Supreme Court.  His dissent was prominently reported in the media.  He also left a trail of controversies when he recused himself from the collegium proceedings in September 2016 when it was considering the matter regarding the transfer of Justice Dama Seshadri Reddy of the Kerala High Court to his home state Andhra Pradesh even as it was pointed out that Justice Reddy practiced law with his son, but continued to sit through the meeting.  I will take up this matter for greater analysis a little later in this discussion, suffice it here to underline that he does not appear new to such controversies, particularly in going public on issues that could be sorted out within the court.

Indeed, this is no one’s case, for it is a settled matter that puisne judges cannot allot matters before themselves.  However, the issues in this matter turned a little coarser as the case against retired Justice I.M. Quddusi (of the Allahabad, Orissa and Chhattisgarh High Courts), accused of conspiring to bribe supreme court justices, was arrested by the CBI and his case came up before the bench headed by the CJI.  Senior Advocate Prashant Bhushan appearing for the case filed by an advocacy group Campaign for Judicial Accountability on the medical college corruption scandal in the Quddusi case charged that there was alleged reference to CJI Dipak Misra in the FIR and requested him to recuse.  Bhushan persisted when his plea was not entertained; then he was told that his behaviour invited charges of contempt of court.  He audaciously asked the court to press contempt of court charge against him.  The CJI told him that he did was not worth it.  Commenting on the issue, The Guardian said:

Events in the case in recent days have led to extraordinary accusations of misconduct against India’s most senior judge and fierce criticism of the Supreme Court, considered one of the country’s most upstanding institutions.

Critics accuse the Indian chief justice, Dipak Misra, of intervening to ensure only judges of his choice can hear a sensitive case relating to corruption involving a retired high court judge.

Obviously, the matter deserves a serious consideration of the SC and it must emerge out of this crisis unscathed.

Of Realm, Jurisdiction and Discretion

The judiciary in India is overburdened at each level; the Supreme Court has a pendency of 55,259 cases as on 1 November 2017.  Yet, the court tends to take up cases that appear avoidable on analysis.  Indeed, the appellate jurisdiction of the Supreme Court under Articles 132 to 134 of the constitution is quite wide, involving both interpretations of the constitution on one hand and civil and criminal matters on the other.  Add to these the matters arising from public interest petitions and its basket is over-spilling.  However, a critical appraisal of some of the recent cases give the impression that it could have avoided taking them up.

Some of the cases that can be listed in this category are:

  • Liquor ban on national highways.
  • Direction to the Centre to set up a policy on drought management.
  • Direction to the Government of India to regulate Bitcoins.
  • The write offs by the public-sector banks.
  • It’s entertaining the SLP regarding Mahakaleshwar temple in Ujjain regarding deterioration of the lingam in the temple due to use of adulterated milk in worship.
  • Its admission of the SLP and order on mandatory playing of the national anthem in cinema halls.
  • The Shafin Jahan v. Asokan K.N. and others (the Hadiya case) is another matter in which the Kerala High Court admitted the Habeas Corpus plea and the Supreme Court appointed a retired Supreme Court judge to oversee the National Investigation Agency’s investigation for fairness. It is a simple case of two adults entering into an inter-faith matrimony.

In a contrast Death Penalty India Report of the National Law University, Delhi (February 2016) points out that in the past ten years the Supreme Court refused admission to nine SLPs involving the death penalty to eleven prisoners.  Lives of prisoners obviously should take precedence over some of the matters discussed above.

Who Should Appoint the Judges

The appointment of the judges to the higher judiciary and transfer of judges of the High Courts has also become controversial and an issue of tussle between the judiciary and the executive.  The jurisdictional tussle and the resulting tension got further accentuated between the two following the Supreme Court striking down the 99th Constitution Amendment Act that created National Judicial Appointments Commission (NJAC) to replace the Collegium System (CS) operating since 1993. A five-judge Constitution Bench of the apex Court, headed by Justice J.S. Khehar, struck down the NJAC in October 2015, though it admitted shortcomings in the Collegium System and stressed its reform.  The judgment was severely criticised by Union Finance Minister Arun Jaitely, himself a senior advocate, who emphasised, ‘Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger’.  He also stressed that the judgment went against the basic structure of the Constitution.

While the judgment has stressed that the executive must not have a say in the appointments to the higher judiciary, the question regarding the judiciary necessarily appointing its members to ensure independence continues to be contentious.  The Constituent Assembly was sensitive to independence of judiciary.  The report (21 May 1947) of the ad hoc Committee on the SC opined, ‘We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of India.’

The Assembly’s discussion in framing Articles 124/217 repeatedly expressed concerns regarding ensuring ‘sufficient safeguards against political influence’.  The appointments to the higher judiciary by the President of India ‘by warrant under his hand and seal’ was sought to be qualified with ‘subject to confirmation by two-thirds majority of Parliament assembled in a joint session of both the houses’ and ‘approval of the Rajya Sabha’.  An additional clause barring the SC and the High Court judges from any post-retirement appointment was also proposed.  Eventually an agreement on presidential power to appoint the judges in consultation with the Chief Justice of India and any other that he may deem fit was agreed upon.

Indeed, powers and responsibilities of the President as qualified by the 42nd and 44th constitutional amendments to Article 74 added a new dimension due to circumscription added, which perhaps have added to the suspicion of the executive.  The possibilities of executive interference in judicial appointments appeared real, more particularly after the experience in the early 1970s.

The process of judicial appointments in other democracies presents a mixed picture.  While the US follows its processes for most apex appointments that are a combination of ‘Presidential selection and Senatorial approval’, in Canada the appointment made by the federal cabinet precedes screening by a judicial advisory committee, in Australia Governor-General-in-Council makes the appointment and the cabinet headed by the Prime Minister on the advice of the Attorney General makes selections, and in the UK the selection commission consisting of the President and Deputy President of the court makes the recommendation that is recommended to the Queen who makes the appointment.

Obviously, judicial independence and the executive’s role in appointments have seldom clashed in most democracies. Indeed, there are instances of a US President regretting his choice because the judgments of the selected judge did not fit into the presidential expectation. Obviously, an institutional structure and process of higher judicial appointments with larger consultation is possible in India too.

It is recorded that Prime Minister Nehru wanted Justice Bijan Kumar Mukherjea to succeed Chief Justice M. Patanjali Sastri in January 1954, superseding Justice Mehar Chand Mahajan and he dropped a hint to Mukherjea, who declined, and Justice Mahajan succeeded Sastri.  However, it was the succession to Justice S.M. Sikri following the majority decision of the thirteen-member bench in the Kesavanand Bharti vs state of Kerala in April 1973 that effectively created the executive-judiciary tussle.  The ‘basic structure’ judgment made the government supersede three judges in line to succeed retiring Chief Justice S.M. Sikri – J.M. Shelat, K.S. Hegde, and A.N. Grover – and appoint Justice A.N. Ray who had given a dissenting judgment.

At a dinner on April 25 in his honour Justice Sikri told Ray, ‘You will rue the day you accepted the chief justiceship.’  On 3 January 1977, Justice H.R. Khanna delivered the Habeas Corpus judgment during the emergency, and he was superseded in favour of Justice H.M. Beg.  Significantly, neither Justice Ray nor Justice Beg had the audacity to decline like Justice Mukherjea did.

However, the question of the executive influence in the appointment of the judges of the higher courts did not come up till the ‘Supreme Court Advocates-on Record Association vs Union of India’ case – the second Judges Case – in 1993 that established the Collegium of the CJI and four senior-most judges of the SC recommending candidates to the President for appointment to the higher judiciary.  It was reaffirmed in 1998 in a presidential reference to Dr. K.R. Narayanan.

The questions entangled in this latest assertion of ‘judicial independence’ are – basic structure doctrine, parliamentary sovereignty and judicial review.  Judicial independence is indeed part of basic structure of the constitution, but can it not be ensured with a more autonomous process of appointments?  Parliamentary sovereignty was asserted in the Constituent Assembly while preferring ‘procedure established by law’ over ‘due process’ during framing of Articles 21 and 22.  However, the introduction of partial ‘due process’ through the ‘basic structure’ doctrine has qualified it as constitutional amendments by the Parliament does not remain unfettered.  In any case, judicial review does not challenge parliamentary sovereignty.

The relationship between the executive and judiciary in India has been an uneasy one from the outset. However, criticism of judicial pronouncements by prime ministers since Nehru is one matter, using supersession as a tool to subdue the judiciary is another.  The executive and parliamentary unease at the other interfering with the judicial appointments and the desire to retain the privilege has a certain basis – the executive has crossed the line twice and the legislative has not resolved the disconcerting questions on representation; legislators with criminal background, for example.  Yet, a process of dialogue to design an institutional process that minimises discretionary powers on either side could be a solution to this mess.  The judiciary would also have to recognise that it can determine professional competence of the candidates recommended, but it does not have the wherewithal to scrutinize the personal background, which perhaps the intelligence agencies can do better.


The three sets of controversies discussed here indicate the extent to which the judiciary needs to put its own house in order.  The tussle between the two senior-most judges of the apex court not only creates a negative impression of an otherwise positive record of the judiciary, it also impacts its decision-making process.

The Supreme Court also needs to be more discrete in admitting cases.  Obviously, cases of all kinds, including those that are in the realm of the executive and the legislative, must not be admitted given the rising number of pending cases.

Last but not the least, the collegium deserves to be streamlined and its decisions made more transparent.  The transfer of Justice Jayant Patel from the Karnataka High Court created a situation where he had to resign.  Such indiscretions need to be avoided and a mechanism of synergizing decisions with the executive would strengthen the collegium by minimizing controversies.  Hence, cooperation amongst the two branches is called for.

(The writer is Director {Honorary}, Centre for Public Affairs, Noida, UP)

By Ajay K. Mehra

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