India’s Judicial Reforms: A Never-Ending Story

The last few weeks have seen very interesting developments in the nation’s apex court. Under the massive and elegant dome of the building in a corner of the capital’s Lutyens zone, a momentous legal battle is being played out—a battle that might alter the fundamental structure of our Republic’s justice-delivery system. Since two strongly-equipped and determined forces are involved, it is anybody’s guess how this clash of arms (read ideologies and viewpoints) will end.

In one camp, we find the Indian higher judiciary (judges of the Supreme Court and the various High Courts) and in the opposing camp are the executive (the government) and the legislature (Parliament). The case that is being heard by a five-judge Constitution Bench of the Supreme Court pertains to 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.

During the last few years, I have analyzed and assessed this complex and sensitive subject in various publications and forums. There are problems in writing on this theme in the public domain; there is always the possibility, however remote, of the draconian provisions of the Contempt of Court Act being invoked against an author who crosses the undefined and shifting lakshman rekha laid down by the judiciary, or, to mix metaphors, traverses the Rubicon, an analogy more in tune with the Western mores, so facilely adopted by the Delhi elite. Therefore, all writers on this subject are always watching their punches and pulling back whenever they sense they are treading the precariously thin line.

However, the situation on the ground is so disturbing that I feel, in the good company of some other analysts, I should revisit the thorny subject once again.

During the course of the recent hearings, many serious charges and accusations have been leveled against some members of the higher judiciary. The Attorney General, Mukul Rohatgi, arguing on behalf of the Union Government and defending the NJAC Act and the Constitution Amendment Act, strenuously emphasised that the earlier “collegium system” did not work well at all.

The Bar Association of India also concurred and said that the “system of appointments by a collegium of judges has not worked satisfactorily and has not succeeded in appointing the best available talent to the highest judiciary”. Even the eminent legal luminary, Fali Nariman, who was opposing the NJAC Act, graciously admitted that the collegium system had not been scrupulous in carrying out its task of appointing judges and had attracted a lot of valid criticism.

If Nariman was studiously proper in his observations, one senior legal luminary, quite popular on the small screen, was withering in his comments. According to him, the old (and discredited) collegium structure had appointed a number of unsuitable and unethical persons who had brought disrepute to the entire judiciary. Of course, he added the usual caveat that the majority of judges were upright and good. The spectre of the contempt law hangs even over the senior lawyers, though they, evidently, have greater leeway.

The higher judiciary in India has certainly had a very chequered track record in the last five decades or so. We have witnessed a catastrophic fall in the quality of our judges in the apex courts and the High Courts. In our formative years, we have read, heard and occasionally seen titans like S.R. Das, M.C. Chagla, P.B.Gajendragadkar, and H.R. Khanna (to randomly cite just a few) in the nation’s halls of justice. Among these four, Chagla is the only one who did not make it to the rotunda of the majestic building on Delhi’s Tilak Marg, that houses the Supreme Court.

Over the last three decades, the stench of corruption has become all-pervasive in the country’s judicial corridors. Many judges of the main High Courts in the country and the Supreme Court have come under the scanner. In the close-knit legal fraternity, there are numerous reports and accounts of wayward judges, whose peccadilloes range from appalling standards of legal erudition, to inefficiency, favouritism, and finally, to that epitome of judicial sin, corruption. However, every single judge with a cloud hanging over his or her head got away clean with the alleged offences he or she was tainted with.

After the Constitution came into force, not a single sitting High Court or Supreme Court judge has ever been impeached. The last judge to be axed in this country was before it became a Republic. The person was an Allahabad High Court judge, Shiva Prasad Sinha, who was removed from office by the-then Governor-General, C. Rajagopalachari, on the 22nd April 1949, following an enquiry report from the Federal Court of India, the predecessor of the Supreme Court. Sinha was charged under the colonial-era Government of India Act, 1935. There is a delicious irony in all this, since this essay is being written in a journal founded by the great CR.

From the late 1980s onwards, things went rapidly downhill. A series of scandals enveloped the higher judiciary; it appeared that some members of this august group had decided to brazen things out. From accusations of promoting the interests of their off-spring to writing out judgement orders in advance, cash deliveries at their residence, links with the underworld et al, the list of infamies grew and widened in scope. One CJI’s official residence also served as the registered address of the companies run by his sons. Another Supreme Court judge was allegedly involved in a grotesque scam to raid the Provident Fund accounts of government employees parked in the official treasury.

Yet, despite this mounting pile of evidence that things were far from kosher, there was very little that could be done with wayward judges. The only way under Indian law 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 protected by the tortuous provisions of Article 124(4), read in conjunction with Article 217 (1)(b) of the Constitution. Their removal can take place only through an order of the President, passed after a judge has been impeached by Parliament.

The rules of impeachment easily surpass those of a very difficult hurdles race. The accused judge must be pronounced guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha, and in each case, the verdict 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”. Wags have remarked that our Republic’s Constitution has made the senior judiciary one of the most protected species in the globe.

The founding-parents of our Republic, who wrote the inspiring Constitution of the young nation with an ancient history of justice and jurisprudence would have been truly ashamed if they had experienced the various peccadilloes of our judiciary. that we have been seeing. And most certainly, they would have been outraged that this group had widened and enlarged its constitutional immunity by a most interesting judgement, forty one years after the Constitution came into effect. I refer, of course, to the Supreme Court’s landmark decision in K. Veeraswami vs Union of India and Others, {1991] 3 SCC 655], in which a majority of judges (4 to 1) decided on an issue of vital importance that affects every one of us. Yet, this is a legal development of cardinal importance that very few Indian citizens are aware of.

In a long and disjointed judgement, the bench ordained that any criminal case against a Supreme Court or High Court judge would be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The overt logic for this decision was that the higher judiciary required protection from any executive interference.

The operative part of the diktat reads as follows :

“It is accordingly directed that no criminal case shall be registered under Section 154, Cr.PC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India (CJI) is consulted in the matter. ….If the CJI is of opinion (sic) that it is not a fit case for proceeding under the Act, the case shall not be registered. ….It is necessary that the CJI is not kept out of the picture of any (emphasis added) criminal case contemplated against a Judge”.

Let’s be very clear. This was a veritable coup against the Republic’s citizens. The ramifications are mind-boggling. Section 154 of the Cr.PC pertains to the draconian First Information Report (FIR) that is every law-abiding citizen’s nightmare. This is the law that allows any thanedar in the country to knock on your doors, even at night, and take you to a lock-up in the police station where the FIR was lodged, if the offence recorded in the FIR is “cognisable and non-bailable” under the Cr.PC. There are some relatively minor safeguards and protections that the Supreme Court and some High Courts have pronounced in recent years to control the powers of the police after registration of an FIR.

To return to the judiciary, I must again emphasise that the country’s senior judiciary, through the Veeraswami verdict, has conferred upon itself a blanket immunity that the Constitution’s framers never dreamt of.

A plain reading of the judgement suggests only one conclusion—a judge can commit any offence under the laws of the land but his or her prosecution can only be initiated with the CJI’s prior permission. This is certainly the position that has been accepted by everyone in the establishment.

More retrograde developments have taken place since Veeraswami. In the Soumitra Sen case, a sitting High Court judge was accused of committing grave financial improprieties before he was elevated to the Bench. As a lawyer, he was charged with misappropriating funds while carrying out his work as the Official Liquidator in a bankruptcy matter. Sen was brought up for impeachment proceedings in Parliament, instead of being tried in an ordinary court of law. This is an unwarranted extension of the ratio of the Veeraswami decision to offences alleged to have been committed before a judge assumed office.

During all the elaborate arguments advanced by the various parties in the last week before the Constitution Bench, there was not even a whisper about the Veeraswami ghost that was hovering in the court room. Everyone waxed eloquent about a free judiciary, protection from executive interference, transparent judicial appointments etc. No one was even thinking about how the nation can make the senior judiciary truly accountable as long the Veeraswami judgement is not repealed through an Act passed by Parliament, and, equally, an effective impeachment procedure is not devised. The restoration of the pristine glory of our Constitution was not even on the agenda.

The present debate in the Supreme Court will, therefore, be nothing but shadow boxing, unless it tackles the core issues. Mario Puzo made a very apt assessment of the justice delivery system of our times when he said that “The lawyer with his briefcase can steal more than a hundred men with guns can”. And, of course, Jean Giradoux : “No poet ever interpreted nature as freely as a lawyer interprets truth”.