India’s Higher Judiciary Needs A Drastic Restructuring

Jay Bhattacharjee

Mar 16, 2016, 11:35 AM | Updated 11:35 AM IST

Supreme Court of India
Supreme Court of India
  • No modern democratic republic, that values ethics and equality, can or should tolerate a socio-political structure that confers almost total immunity to the judiciary.
  • The last week saw some very significant developments in national governance and constitutional law. On 8 March, a three-judge bench of the Supreme Court, in WP (Civil) No. 536 of 2011 (Public Interest Foundation v Union of India), decided to refer to a Constitution Bench the issue of disqualifying legislators from Parliament or the state assemblies at the very stage when a trial court frames charges against them in a criminal case. The question that will now be decided by the Constitution Bench is whether disqualification of legislators facing criminal charges should wait till conviction takes place. Clearly, the apex court felt that this is a substantial question of law that must finally be settled.

    This is a development that must be welcomed by all Indians who are gravely concerned by the relentless criminalization of the country’s political framework. Two years ago, in March 2014, the apex court had passed an interim order that criminal trials of legislators, especially in matters that involved corruption and other serious offences, must be completed within a year. While these are welcome initiatives of the Supreme Court in this critical area, there are also major worries as to why the nation’s judicial system is not going through a similar churning.

    The higher judiciary is one of the three critical Constitutional pillars of the Indian Republic (the other two, of course, being the legislature and the executive). Moreover, for the first few decades after the promulgation of the Constitution, the judiciary was the least tainted of the three institutions that constitute our governance structure. The exception, of course, was the shameful interregnum of the Emergency (June 1975 to March 1977) when the Supreme Court did not cover itself with glory at all. However, in all fairness, the apex court partly redeemed itself after this dark period was over.

    There is also a personal angle – during my early years in high school and college, I had the privilege of seeing a few titans of the country’s judiciary and could not but be highly impressed, indeed overawed, by the sheer erudition and integrity that these people manifestly possessed. However, the story in the last three decades has been woeful. The biggest disappointment was the Supreme Court’s self-serving and utterly egregious Veeraswami judgement in 1991 (K Veeraswami vs. Union of India and Others, [1991] 3 SCC 655) that unilaterally extended the Constitutional immunity of the higher judiciary (under Article 124) to an almost virtual exemption from all the laws of our country. Added to this was the way the judiciary arrogated to itself the exclusive power to appoint its own members.

    Last year, when the issue of the constitutional validity of the National Judicial Appointments Commission (NJAC) Act, 2014, as well as the Constitution 99th Amendment Act, 2014, that amended Articles 124 and 217 of the Constitution, was being argued in the apex court, I studied the whole subject in an essay for Swarajya. True to form, the Supreme Court (embodying the higher judiciary) decided to protect its turf and, most unfortunately, decided to revert to the collegium system of appointment of judges of the Supreme Court and the High Courts. We are, therefore, back to a scenario where one of the Constitutional pillars has barricaded itself behind an impregnable wall of immunity, non-accountability and self-perpetuation. Indeed, in the last area, they have guaranteed inbreeding of the worst type.

    But recent events have come as a shock even to India’s citizens who are now used to shenanigans of the most brazen variety. The first was an inexplicable error by the apex court itself, when it issued a notice to the Arunachal Pradesh Governor over his report that recommended imposition of President’s rule in the state. This was such a cardinal mistake that all legal and political commentators were stunned. There is absolutely no way that any court in the country can issue a notice to the President or to any of the Governors of the states.

    If this was not enough, the country rubbed its eyes in disbelief when, a few weeks ago, CS Karnan, a judge of the Madras High Court, passed an order ‘staying’ the decision of the Chief Justice of India (CJI) to transfer him to the Calcutta High Court. The man went on to say that he would pass a suo motu order to the Chennai police chief to register an FIR against two Supreme Court (SC) judges who had allowed the Chief Justice of the Madras High Court to stop assigning any judicial work to Karnan.

    The CJI then took urgent remedial steps to temporarily contain the damage, by directing that no “other orders shall be passed by Justice CS Karnan, suo motu or otherwise, in any matter not specially assigned to him”. The CJI also made it clear that “the operation of all or any administrative/ judicial order(s) passed by Hon’ble Mr Justice CS Karnan, after the issuance of the proposal of his transfer from the Madras High Court dated 12.02.2016 (unless specially assigned to him, by Hon’ble the Chief Justice), shall remain stayed till further orders”.

    This is the icing on the cake. It is time to emphasise that there is a cancerous malaise in our higher judicial structure. It needed a tamasha like this to sound warning bells that a drastic overhaul is needed in our judicial system, in tandem with the other two pillars of our governance framework. There are a few glaring factors that are staring us in the eye.

    Near Blanket Immunity Of The Higher Judiciary

    It is imperative that the toxic Veeraswami judgement is overruled/negated by an Act of Parliament. No modern democratic republic that values ethics and equality can or should tolerate a socio-political structure that confers almost total immunity to the judiciary. Let us remember that politicians have no such immunity; in any case, they have to get themselves periodically re-elected and this itself confers a fair degree of power to ordinary citizens.

    The bureaucracy enjoys some immunity, thanks to the ill-conceived wording of Section 197 of the CrPC which states that no public servant can be prosecuted for any offence alleged to have been committed “while acting or purporting to act in the discharge of official duty”, without the prior sanction of the government. However, this does not confer any omnibus protection to bureaucrats.

    There Has To Be Meaningful Provision For Sacking Judges

    The present procedure of removing judges only through impeachment in Parliament is so complex and intricate that it just does not work. The only way to remove a Supreme Court/High Court judge from his office is through the convoluted process of impeachment. To recap for the general reader, Supreme Court and High Court judges are shielded by the Byzantine provisions of Article 124(4), read in conjunction with Article 217(1)(b) of the Constitution. They can only be removed by a Presidential order after a judge has been impeached by Parliament.

    The rules of impeachment are also most tortuous. An accused judge must be adjudged guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha. In both these Houses, the decision has to be supported by a majority of the total members of each House and by a majority of “not less than two-thirds of the members of the House present and voting”. The joke that has been going around in legal and political circles for years is that the senior judiciary in India is one of the most protected species in the planet.

    The Collegium System Has To Be Jettisoned

    This is another regime that must be done away with. It is morally indefensible that the higher judicial appointments can only be done by the judicial fraternity and that the rest of the country, including the executive, cannot be allowed to have any say in the matter. It is the collegium system that has led to the precipitous decline in the quality of High Court and Supreme Court judges. A country that has seen judges of the calibre of PB Gajendragadkar, HR Khanna, SR Das and MC Chagla (to name just a few) has just not seen similar titans in the last three decades. Veteran Delhiites still recall that Justice SR Das, when he was in the apex court, refused to socialise with his son-in-law, Ashok Sen, who was the Union Law Minister.

    If we revamp the entire system of selection of judges in the High Courts and in the Supreme Court by introducing a balanced procedure that has inputs from the judiciary, the executive and eminent persons of unimpeachable integrity, we will certainly be better off than the present mess. The Karnan episode is merely one of innumerable peccadilloes and scandals that have tarnished the institution.

    If we don’t get our act together now, we seriously run the risk of what the great essayist HL Mencken warned us about. According to him, a judge is “a law student who marks his own papers”. He, of course, was referring to judges in the US. One shudders to think what his verdict would have been on the Indian ones. Enough said.

    Jay Bhattacharjee is a policy and corporate affairs analyst based in Delhi.

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