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Above: Supreme Court/Photo: Anil Shakya

The two wheels of the Constitution, Judiciary & The Executive should run smoothly together lest they threaten other structures of accountability. Three recent issues show why this is imperative for constitutional good governance

By Prof Upendra Baxi

Two Wheels of the Chariot? A typical chariot is made of four wheels, which must run in unison if it is to run at all. The four wheels are represented in the Constitution of India as the people, the executive, the legislature and the judiciary. But ancient chariots had only two wheels, which we may liken to the executive and the judiciary. This old chariot was designed for speed and mobility; instead, in India it moves (to borrow an expression from the US Supreme Court) with “all deliberate speed”. One reason for this, as I have said elsewhere, is that the role of the Supreme Court is often times to apply brakes to the accelerator of executive/ legislature combine. It is often not understood how the Court has to do this regularly, as Article 21 (the right to constitutional remedies) confers not merely the power but also the constitutional duty to interrogate the executive and legislative power very regularly. It is the political executive who exercises the power to slow down the constitutional chariot—an all-too-secure judiciary is, it is felt, always liable to threaten the other structures of accountability for power. The asymmetry between the executive and the judiciary is often brought out in daylight when it is seen by the people that the chariot virtually comes to a standstill.

Three recent statements in this context are significant.

 “Not a Post Office”

Union Minister for Law and Justice Ravi Shankar Prasad, on assumption of office, said that he and his ministry will not be merely a “post office” but a “stakeholder in the judicial system, including in the appointment of judges”. This observation is very significant now that the Modi 2 regime has triumphantly obtained a majority in the Lok Sabha. Among the first acts of Prime Minister Narendra Modi was to secure an all-party consensus on the National Judicial Appointments Commission (NJAC) (India Legal, May 27, 2019). The judicial invalidation of the NJAC constitutional amendment and the Act constituted a great setback. But the regime fought a determined battle by asserting the executive finality over the draft of MoP (Memorandum of Procedure for judicial elevations) by delaying endorsement of some of the names submitted by the collegium and yielding to it only when they reiterated these. Thus, on the eve of the new government formation, a de facto situation of constitutional diarchy prevailed in regard to judicial appointments and transfers.

The NJAC decision, as is well-known, struck down, by a majority of 4:1, the constitutional amendment and the Act on the ground that the inclusion of the proposed commission of the law minister as a full member and the Union law secretary as the convenor made possible situations which violated the basic structural feature of the independence of judiciary as this may overcome judicial primacy. This was not permissible at the bar of basic structure discipline as the State was the largest litigant.

The NJAC decision made it clear that this was a structural decision about the primacy of the judicial collegium sculpted in the Second Judges case; it was never the judicial intention to lower the dignity of the constitutional office of the law minister. The decision was not against the incumbent but the office and the Constitution did not since then allow the executive any primacy in the appointment and transfer of Justices. Now that the law minister has spoken, it is incumbent on all constitutionally sincere citizens (including those who govern) to understand and evaluate the implications of the image of the ministry as a “stakeholder”.

Impeachment of a High Court Justice

On June 23, the press reported that the chief justice had written to Prime Minister Modi about initiating an impeachment motion in Parliament for removal of the eighth seniormost Allahabad High Court judge, Justice Narayan Shukla. The complaint against him was that he allegedly permitted a private medical college to admit students for the academic year 2017-18 despite the ban imposed both by the Medical Council of India and the Supreme Court. Then a three-judge in-house committee, comprising Justices SK Agnihotri (Sikkim), PK Jaiswal (Madhya Pradesh) and chief justice of Madras High Court Indrani Banerjee found substance in the charges against Justice Shukla.

CJI Ranjan Gogoi, nearly after 18 months, has again drawn the attention of the prime minister for the need for action for impeachment, though all judicial work has been taken away from Justice Shukla by the chief justice of the Allahabad High Court on the directive of then CJI Dipak Misra. The question is not so much about the guilt or the innocence of Justice Shukla; that remains an affair entirely within the jurisdiction of the Judges Enquiry Committee to be set up under the 1961 Act. Justice Shukla has declined to resign from the office, though he is currently on leave of absence.

The question is why the “stakeholders” in the judicial process require a reminder from the CJI in such a matter. Is executive inaction the best response to prima facie charges of serious nature vetted by the highest judiciary? And is this delay fair to the judge concerned: should he not get an opportunity to place his narrative before a competent committee? What other parallel enquiries may the executive ever conduct, thus claiming to be a secret judge of judges? Should it by its inaction and silence condemn the concerned Justice to constructively demit his office with the passage of time when he reaches superannuation? Do no duties of office require communicative courtesies owed to a CJI when he writes to the PM? And what about the effect on disposal of cases caused by the shortage of one justice on the Court?

Superannuation Age

I have always advocated the view that 70 years is a fine enough age for all Indian appellate Justices to retire. This will, to some extent, ensure expedition and stability in the administration of justice. It would also end the scramble for elevation to the Supreme Court. The measure will also enhance judicial independence—a constitutional value and virtue. But two arguments seem to have prevailed—first, the bureaucratic argument of service parity between senior public servants and the judiciary and second, the political command-and-control type argument under which a lower retirement age and a quick turnover of Justices gives the political class a democratic opportunity to exercise control over judicial elevations. These arguments lurk in the background and are always whispered in the corridors of power.

The third position is that an early retirement age is a workable cure for bad judicial elevation; inefficiencies and incompetence in a Justice are a national misfortune and the cumbersome political process of removal is mostly ineffective. None of these positions are publically canvassed but they regularly prevail, whenever the question of retirement age of Justices appeared in Parliament.

The latest was the 114th Constitution Amendment Bill which was introduced in the 15th Lok Sabha on July 25, 2010. The Bill lapsed because Parliament was subsequently dissolved. In July 2018, two events happened. In the presence of brother Justices who had held a publicly debated and the first-ever press conference, Justice Kurian Joseph (speaking at a conference on “National Initiative to Reduce Pendency and Delay in Judicial System” in Delhi along with CJI Dipak Misra) expressed himself in favour of an upward revision of age of Justices: he favoured 70 years for all constitutional appellate Justices. But the Parliamentary Standing Committee did not “see the enhancement of age of retirement as a solution to delayed appointment of High Court Judges” and instead recommended that “the process of filling up of the existing vacancies may be expedited by all means”. In the same month, the minister of state for law and justice stated in Parliament that the government was not considering any measure. All this happens in blithe disregard of the Parliamentary Committee which, in early December 2016, recommended 68 years for superannuation for Supreme Court justices.

The cavalier dismissal of causal linkage between judicial personnel and mounting arrears has to find some quietus. As per the National Judicial Data Grid data, the aggregate pendency figures are: more than 2.84 crore cases for subordinate courts, 43 lakh cases for High Courts and 57,987 cases for the Supreme Court. And according to the Union of India affidavit before Judge Keenan in the Bhopal catastrophe case, India has the lowest judge-population ratio in the world—19.66 judges per million (10 lakh) people as of today. In 2016, in contrast, the comparative figure for the UK was 51 judges per million people; the US, 107; Australia, 41 and Canada 75.

In this zodiac, what may we make of post election missives by the CJI to increase the superannuation age of High Court Justices to 65? Did he write in his capacity as CJI or also on behalf and at the behest of the collegium? Was the alternative of writing to the president not more constitutionally correct as all executive powers are exercised under his name, he also being an appointing authority? More important, does the letter add any arguments not already considered and rejected by the executive/ legislative combine? Should the PM have the matter considered afresh? Whatever answers to other questions that may someday emerge, one hopes that the PM and the law minister consider more fully this reiterated request from the CJI.

Probably, the CJI overlooked an SAL/PIL filed by advocate RK Kapoor seeking a direction to the centre to increase the retirement age of High Court judges to 65 years and Supreme Court judges to 68 years as per the Justice Venkatachaliah Committee report for constitutional change. In any event, the petition was heard in the first week of October 2013 by a bench comprising of Justices HL Dattu and Gogoi. Is there any reason why this recommendation ought not to be followed?

The rationale for 68 years is to preserve the three years difference between High Court and Supreme Court Justices. On the other hand, the provision of retirement at 70 years for all Justices has the merit of reducing the unexplainable gap of superannuation age among two classes of Justices. Of course, this proposal will mean that no Justice would serve in commissions or tribunals after attaining the superannuating age. This may be a good thing in terms of the much talked about post-retirement assignments for Justices said to pose threats to judicial independence. The Vidhi Centre for Legal Policy, in a 2016 report, counted 70 of the last 100 judges who retired from the Supreme Court took up post-retirement jobs; it also finds that 56 percent of all the appointments studied were made because the law so required it, and this clearly indicates a penchant for utilizing the services of superannuated justices.

There is, to conclude ruefully, something clearly wrong in the State of Denmark. Long ago, I informally persuaded Justice DA Desai that the Law Commission ought to consider the concerns of judicial manpower planning. There was no reason for delay in judicial appointments as the superannuation age of incumbents is well-known. Nothing prevents processes being put in place for elevation for all positions that fall vacant; this operation must be carried out with constitutional clockwork precision, with no latitude being given to the collegium (http://www.indialegallive.com/viewpoint/delayed-decision-disrespectful-52298) or the government.

At any rate, Justice Desai did a deeply significant 120th report in 1987. Perhaps, it is time to take dust off the past accumulated wisdom in hot pursuit of constitutional good governance for the nation.

— The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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