REWIND
New Delhi, 27 October
2022
Judiciary
and Restraint
By Inder
Jit
(Released
on 21 March, 1978)
Everyone today swears
by the independence of the Judiciary. Happily, no one talks any longer of
committed judges. However, a question which needs to be asked is: are we doing
enough to uphold and strengthen the judiciary and its independence? True, the
Janata Government at the Centre restored last month the well-settled convention
of appointing the senior-most judge as the Chief Justice of India. The decision
to name Mr Justice Chandrachud as the new Chief Justice was hailed widely and
helped to revive popular faith in New Delhi's commitment to an independent
judiciary. But a great deal more remains to be done both by the Government and
the Opposition parties. Healthy conventions have yet to be established in
regard to the sound concept of judicial aloofness. Likewise, we have still to
build up traditions of Parliamentary restraint vis a vis the judiciary. It is
not enough that the judiciary is independent. It must also be helped to appear
independent.
These thoughts are
prompted by a recent happening in the Rajya Sabha which, alas, has not
attracted deserved attention. On Tuesday last week, Congressmen accused the
Union Government with interference in the independence of the judiciary. They
alleged that the Chief Justice of Allahabad High Court, Mr Justice
Chandrasekhar, had been arbitrarily transferred to Karnataka High Court so as
to enable Mr Justice Satish Chandra, brother-in-law of the Union Law Minister,
Mr Shanti Bhushan, to be appointed Chief Justice of Allahabad High Court. In
fact, Mr D.N. Dwivedi, the member who raised the issue, asserted that Mr
Justice Chandrasekhar, who had been transferred from Karnataka High Court to
Allahabad High Court during the Emergency without his consent, had not
expressed a desire to go back and was “very happy” in Allahabad. Later members
of the two Congresses, led by Mr Kamlapati Tripathi and Mr Bhola Paswan
Shastri, walked out of the House in protest against “unsatisfactory replies” by
Mr Shanti Bhushan.
What are the facts?
Mr Justice Chandrasekhar did “request” a transfer, according to the letter
which he wrote to the then Chief Justice of India in September last. The text
of the letter was read to the House by Mr Shanti Bhushan who also explained how
it was only fair to have acceded to Mr Justice Chandrasekhar’s request. Mr
Justice Chandrasekhar, it may be recalled, was transferred to Allahabad as
punishment for his independence. He had before him in Bangalore important habeas
corpus petitions involving Mr Atal Behari Vajpayee, Mr L.K. Advani, Mr
Madhu Dandwate and Mr Shyam Nandan Mishra. On four occasions at least he gave
orders in favour of the petitioners and the Union Government was constrained to
appeal to the Supreme Court. At one stage, Mr Justice Chandrasekhar even
threatened to hold the then Attorney-General, Mr Niren De, guilty of contempt,
forcing the Centre to fly Mr. Advani and two others from New Delhi back to
Bangalore by a special plane. An unwell Mr. Vajpayee was in Bangalore already.
Mr Justice Satish
Chandra, who was appointed a High Court judge on October 7, 1963, should have
become Chief Justice of Allahabad High Court on May 9, 1977 in the normal
course when Mr Justice K.B. Asthana retired as Chief Justice. But the transfer
of Mr Justice Chandrasekhar to Allahabad during the Emergency blocked his
elevation; Mr Justice Chandrasekhar became a High Court judge on September 20,
1963 and was thus 17 days senior to Mr Justice Satish Chandra. “Two days before
Mr Justice Chandrasekhar took over as Chief Justice on May 9, 1977, Mr Justice
Satish Chandra resigned. Fortunately for him, he resigned with prospective
effect from August 1, 1977. (The procedure, I am told, is not unusual as it
allows the judge to take care for his leave etc; Mr. Justice H.R. Khanna, resigned
on January 29, 1977. But the resignation became effective from March 12, 1977.)
On July 15, however, he withdrew his resignation and sat on the court till July
31. But on August 1 Mr. Justice Satish Chandra’s right to withdraw his
resignation was challenged by a lawyer through a writ petition.
A five-men bench of
the Allahabad High Court allowed on October 28, 1977 the writ petition by a
majority of three judges to two and upheld the contention that the resignation
of a judge became effective as soon as it was submitted. Mr. Justice Satish
Chandra was consequently restrained from acting as a judge. But he and the Union
of India, which was impleaded as the appointing authority, went in appeal to
the Supreme Court. On December 8 last, a five-man bench of the Supreme Court,
head by Mr. Justice Sarkaria, allowed the appeal by a majority of four judges
to one. Mr. Justice Satish Chandra was thereafter allowed to function as a
judge, and his way cleared for appointment as the new Chief Justice of the
Allahabad High Court in view of his position as the senior-most puisne judge. Incidentally,
Mr. Justice Satish Chandra is senior to 13 Chief Justices of High Courts out of
a total of 18. He is also senior to seven of the Supreme Court’s thirteen
judges.
Was the Union Law
Minister guilty of nepotism, corruption and “high conspiracy” in the whole
drama as alleged in the Rajya Sabha? A few facts are of interest. First, Mr.
Shanti Bhushan could have helped his brother-in-law to become the Chief Justice
even on May 9 last year in case he so desired. Opinion in New Delhi in April
last favoured early repatriation to their home states of all the judges
transferred during the Emergency without their consent. Second, Mr. Justice
Chandrashekhar put in his request for a transfer back to Karnataka High Court
in September --- well before the Allahabad High Court gave its decision on the
writ petition against Mr. Justice Satish Chandra; the Supreme Court’s decision
came only on December 8. Third, all matters relating to the case of Mr. Justice
Satish Chandra, beginning with his resignation from the High Court and ending
with the recommendation of the UP Chief Minister that he be appointed Chief
Justice, were directly placed before the Prime Minister and were dealt by him,
as Mr. Shanti Bhushan candidly told the Rajya Sabha.
The manner in which
the Opposition raised the matter in the Rajya Sabha symbolizes an unhealthy
aspect of our parliamentary functioning. Various issues are raised in the House
straightway and sensation created ignoring time-honoured practices adopted in
the Commons. Initially, Mr. Dwivedi and other Congressmen could have taken
advantage of Parliament’s inner lobby and first raised the matter with Mr.
Shanti Bhushan informally. In case they were unable to get satisfaction, they
could have then taken up the matter with the Prime Minister. The sensitive
issue should have been brought up in the House only if the Prime Minister had
also failed to give them satisfaction. In the House, too, the Opposition could
have gracefully accepted the facts, once Mr. Shanti Bhushan read out the text
of Mr. Justice Chandrashekhar’s letter. Indeed, there was a good case for the
Opposition to respond positively to Mr. Biju Patnaik’s interjections: “It’s
time to apologise.”
Apart from
parliamentary restraint, we also need to build up a tradition of judicial
aloofness which is necessary if the judiciary is also to appear independent. No
one today can justifiably subscribe fully to the old British dictum that a
judge should live like a hermit and work like a horse. Nevertheless, few can be
happy with the manner in which even some of the highest among our judges have
conducted themselves over the years. I remember a former Chief Justice of India
who took enthusiastically to New Delhi’s diplomatic whirl and was, on
occasions, seen to make a bee-line for the bar on arrival. Some years ago, I
saw a High Court Chief Justice seeking an introduction to the Union Home
Minister at a wedding reception in New Delhi and, after bending low like a
seasoned durbari, Saying: “Sir, I have been waiting for this great privilege
and honour for a long time.” I have also witnessed a Chief Justice of India
throw all discretion to the winds and talk animatedly at a Rashtrapati Bhavan
reception in turn to the Law Minister, the Home Minister and, finally, the
former Prime Minister virtually on the eve of a major judgment by the Supreme
Court on a matter vitally concerning the Union Government.
The standards have
continued to fell and it is not uncommon to find Supreme Court judges go out of
their way to cultivate politicians. Not long ago, a veteran legal luminary was
shocked to find senior Union Ministers as fellow guests at an informal dinner
hosted by a Supreme Court judge. Things, of course, virtually touched their
lowest standards during the Emergency when some judges went all out to prove
their commitment to Mrs Gandhi and her regime. Clearly, the new Chief Justice
of India, Mr Chandrachud, needs to take a good look at the whole problem and
set up new standards and norms of conduct. He could consult not only some of
his predecessors but also eminent veterans among the legal luminaries. One such
veteran even objects to the Chief Justice of India attending state banquets
every other day and lining up with Union Ministers to greet the visiting dignitary.
“Let him have a banquet of his own for a visiting Chief Justice only" he
says.
Much else will also
need to be done to restore the image and independence of the judiciary, eroded
increasingly over the past thirty years in various ways by an executive which
exploited, among other things, the absence of a ban on the appointment of
retired judges to influence them and become supreme. In a classic case, a
Supreme Court judge accepted Chairmanship of the Law Commission, a body
directly subordinate to the Law Ministry, some months prior to retirement.
Incredible as it may seem, he attended the Supreme Court in the morning and the
Commission in the afternoon. There is thus need on all sides to review the
matter and take steps to strengthen the judiciary as a vital limb of our
democracy. Nothing should be done by anyone which either erodes its
independence or unfairly tarnishes its image. What we are is undoubtedly
important. Much more important, however, is what we appear to be. ---INFA.
(Copyright, India
News & Feature Alliance)
New Delhi
March 18, 1978.
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