Spe­cial: con­sti­tu­tion ex­pert upen­dra Baxi on the State of ju­di­ciary

Governance Now - - FRONT PAGE - Shishir Tri­pathi

The supreme court and the ques­tion of judicial re­forms are much in de­bate these days. You have re­cently com­mented, “Any re­form of the sys­tem will have to come from within the court it­self.” In that con­text, how do you view the move of the four se­nior Jus­tices to go pub­lic?

Yes, but they all also said that they re­spect the of­fice of the chief jus­tice of In­dia (CJI). They also re­spect his power and pre­rog­a­tive to con­sti­tute benches and re­spect his po­si­tion as the mas­ter of ros­ter. They are not against the of­fice of the chief jus­tice. Cer­tainly, they are against any move towards ar­bi­trary and ir­ra­tional bench for­ma­tion and lack of suit­able ac­tion at the de­fi­ance of a col­legium-ap­proved mem­o­ran­dum of pro­ce­dure [MOP] and the col­legium-rec­om­mended judicial ap­point­ments and trans­fers.

When they felt that was hap­pen­ing, they took the ex­treme step to ex­press their views in pub­lic, and by mak­ing pub­lic their let­ters to the CJI. such mat­ters are usu­ally solved by in­ter­nal fra­ter­nal dis­cus­sion within, and not out­side, the court. But the dis­sent­ing jus­tices felt that the mat­ter con­cerns the na­tion at large and the fu­ture of con­sti­tu­tional democ­racy was at stake. so they went pub­lic.

sim­i­lar things have hap­pened be­fore. of­ten, jus­tices of the supreme court have dis­agreed with each other. How­ever, it is for the first time that they have gone to the pub­lic and to the me­dia. At the time of su­per­s­es­sion [dur­ing the indira gandhi regime] there were a lot of con­tro­ver­sies. i re­mem­ber a seven-year war be­tween Chief Jus­tice dy Chan­drachud and Jus­tice Pn Bhag­wati. sev­eral ar­ti­cles were writ­ten in the press by sup­port­ers of both groups of jus­tices. Jus­tice Punchhi wrote in a judge’s case judg­ment a dis­sent­ing note say­ing that the draft of the judg­ment came to him very late at night. There was no judicial con­fer­ence and no dis­cus­sion. He wrote this in a judg­ment.

So the dif­fer­ence among jus­tices speak­ing about the func­tion­ing of the court is not an un­usual mat­ter. What i am try­ing to say is that we should main­tain a per­spec­tive on this.

Al­most all the jus­tices who went pub­lic have been chief jus­tices of high courts. in all the high courts it is the chief jus­tices who forms the benches.

The other ar­gu­ment of ‘ju­nior’ jus­tices be­ing al­lo­cated the cases also is not log­i­cal as there noth­ing like se­nior and ju­nior jus­tices in the supreme court – all jus­tices are equal with equal ju­ris­dic­tion. We do not re­call, but re­cently Jus­tice singhvi, who is a bril­liant judge and presided over the ninth court, can­celled more than 160 2g li­cences. no one com­plained that this was an ar­bi­trary al­lo­ca­tion! in the con­sti­tu­tion there is a chief jus­tice and then there are ‘puisne jus­tices’ but ev­ery jus­tice is equal to oth­ers in his/her ju­ris­dic­tion,

in short, the pre­rog­a­tive lies with the chief jus­tice to con­sti­tute benches. He might con­sult the other jus­tices, but as far as i know, there is no rule such that it is manda­tory for CJI to con­sult and that cases must be al­lo­cated only ac­cord­ing to se­nior­ity. nor is there any con­ven­tion that col­legium jus­tices should be given im­por­tant con­sti­tu­tional mat­ters. Jus­tices are now recog­nised as

‘col­legium’ and ‘non-col­legium’ jus­tices. se­nior­ity only counts for the col­legium, pen­sion and chief jus­tice­ship.

Also, the let­ter they re­leased had a sec­ond part too that no­body talked about. The first part was about the for­ma­tion of benches and the sec­ond part was about a let­ter writ­ten to the prime min­is­ter two months be­fore the press con­fer­ence. it was about fi­nal­is­ing the MOP.

Jus­tice Kurian Joseph has clearly writ­ten in a let­ter to the CJI, in ef­fect stat­ing that they have fi­nal­ized the MOP but the government has given no re­ply. so, he wrote, that the mat­ter should now be con­verted into a judicial mat­ter and he re­quested for a bench of seven jus­tices to be formed to suo motu take up the mat­ter and con­sider the ex­ec­u­tive’s not re­ply­ing to it as its con­sent. it is now for the Cji’s court to ex­pe­di­tiously act upon it. The NJAC de­ci­sion re­it­er­ated that the col­legium re­placed the ex­ec­u­tive’s power of ap­point­ment com­pletely. That is the bind­ing con­sti­tu­tional law.

Jus­tice Che­lameswar in his let­ter stated “There have been in­stances when cases hav­ing far­reach­ing con­se­quences for the na­tion have been as­signed by the CJI se­lec­tively to benches of their pref­er­ence with­out any ra­tio­nal ba­sis for such as­sign­ment.”

His lord­ship per­ceives a dan­ger which is al­ways lurk­ing: quite some time back Jus­tice Ja­gan­mo­han reddy wrote a book en­ti­tled ‘We have a Con­sti­tu­tional re­pub­lic: Can We Keep it?’ And Jus­tice o Chi­nappa reddy wrote a whole book en­ti­tled ‘The supreme Court of in­dia: The sum­mit and the shal­lows’. long time ago, Jus­tice gajen­dra­gad­kar told me (regarding the go­lak nath de­ci­sion in 1969 im­mu­nis­ing fun­da­men­tal right from the viris of amend­ments) that the court will for­ever suf­fer from this ‘self-in­flicted wound’.

I con­fine my­self only to the in­dict­ment that benches are formed ir­ra­tionally and ar­bi­trar­ily. What is ra­tio­nal? What may be ra­tio­nal for a group of jus­tices may make cer­tain de­ci­sions of the CJI ar­bi­trary. in any given or­gan­i­sa­tion you al­lo­cate work ac­cord­ing to ex­i­gen­cies. While ar­ti­fi­cial in­tel­li­gence agents (or com­put­ers) of­ten se­lect two judge-benches, it is doubt­ful if these can prove ef­fec­tive for larger benches. Quite of­ten larger benches are con­sti­tuted ei­ther at the re­quest of the bar or the bench. Teach­ers know how dif­fi­cult it is to al­lo­cate sub­jects and make timeta­bles. I know how com­pli­cated and dif­fi­cult the process is. one can­not wholly go by rules and one may not wholly trans­gress: this is the dilemma ev­ery CJ has to face, so i don’t know what is ra­tio­nal and what is ir­ra­tional. if you stip­u­late that the col­legium or se­nior­most jus­tices will be al­lo­cated im­por­tant and se­ri­ous mat­ters, any such yard­stick may also work in a per­verse sit­u­a­tion to im­pinge the prin­ci­ple of in­de­pen­dence of all jus­tices.

We must re­call that there is no divi­sion in the supreme court of a con­sti­tu­tional court and an ap­peals court and a com­mer­cial court. it is a court of mis­cel­la­neous ju­ris­dic­tion. There is usu­ally no spe­cial­i­sa­tion in the supreme Court. so only if there are spe­cialised jus­tices and you ig­nore them can it be termed ar­bi­trary.

How do you re­act to the Jus­tices air­ing their griev­ances in pub­lic and a se­nior supreme court judge giv­ing a me­dia in­ter­view?

This raises two ques­tions. one is the ques­tion of Ar­ti­cle 19 and whether jus­tices have free­dom of speech to talk about ad­min­is­tra­tive mat­ters. About judicial mat­ters, they are free to write what­ever they want in the judg­ment. in case of po­lice, army and civil ser­vice you sur­ren­der this right com­pletely.

The pro­pri­ety is­sues are bet­ter re­flected upon when the jus­tices are off the bench. All the four se­nior­most jus­tices have long judicial ex­pe­ri­ence. Per­haps, jus­tices should not go pub­lic in case of ad­min­is­tra­tive mat­ters – though i don’t know what were the ex­act cir­cum­stances (the prover­bial last straw) that pro­voked them do so.

The point is very sim­ple. If there are dif­fer­ences, the best way is to sort it out in­ter­nally. The foun­da­tion of judicial re­view is peo­ple and not the con­sti­tu­tion. now the peo­ple send their rep­re­sen­ta­tives and say that they are their voice. Jus­tices how­ever do not con­test elec­tions, nor are they pop­u­larly elected; yet they are the ‘or­a­cles

“The pro­pri­ety is­sues are bet­ter re­flected upon when the jus­tices are off the bench. All the four se­nior most jus­tices have long judicial ex­pe­ri­ence. Per­haps, jus­tices should not go pub­lic in case of ad­min­is­tra­tive mat­ters – though I don’t know what were the ex­act cir­cum­stances (the prover­bial last straw) that pro­voked them do so.”

of law’. For a long time com­mon law jus­tices in Eng­land have jus­ti­fied judicial re­view as a way of hon­our­ing the trust peo­ple have in the ju­di­ciary. Af­ter the Ke­sa­vananda Bharati judg­ment our jus­tices have talked about peo­ple, spo­ken about peo­ple’s rights and welfare. This is what i call ‘de­mo­spru­dence’. They as­sume de­mo­spru­den­tial lead­er­ship. They co-gov­ern the na­tion. They don’t just set­tle dis­putes.

This has given enough scope for the op­po­si­tion par­ties to go to an ex­tent that they can lead an im­peach­ment pro­ceed­ing against the CJI. Don’t you think this has done great harm to the in­sti­tu­tion?

The con­sti­tu­tion vests the power of removal of jus­tices in par­lia­ment and stip­u­lates the grounds of ‘proven mis­be­haviour’ or ‘in­ca­pac­ity’. The Judges (in­quiry) Act pro­vides in de­tail the pro­ce­dure to be fol­lowed.

At all times, removal is a se­ri­ous mat­ter and may not be cav­a­lierly made or pur­sued. The chair­man of ra­jya sabha has now ruled not to ad­mit the mo­tion; mainly on the ground that it does not dis­close prima fa­cie the kinds of mis­con­duct for which removal is pre­scribed as a rem­edy. on be­half of the seven op­po­si­tion par­ties, it is now said that this rul­ing is it­self ar­bi­trary and un­con­sti­tu­tional and they in­tend to con­test in the supreme Court.

The removal mo­tion was un­called for. Where does the ques­tion of removal arise? The charges at best re­late to the abuse of power to con­sti­tute benches but the rules and de­ci­sions (also the tra­di­tions) con­fer au­ton­omy to the court to de­cide such mat­ters. Just as the court may not go

“I don’t know why af­ter NJAC was struck down, there was no ini­tia­tive to de­vise a new way of ap­point­ment. The court only said that it [the NJAC Act] was against the con­sti­tu­tion be­cause it did not per­mit the supremacy of the ex­ec­u­tive in judicial ap­point­ments. ”

into mat­ters of pro­ce­dure fol­lowed in ei­ther of the houses, par­lia­ment should not in­ter­vene in the bench for­ma­tion or other in­ter­nal judicial pro­ce­dures. on other re­lated charges, even if the mo­tion was ad­mit­ted by chair­man of ra­jya sabha, it would be in­fruc­tu­ous as the CJI re­tires on oc­to­ber 2, 2018, by which time the process of in­quiry can­not come to a close. removal pro­ceed­ings should not be availed of as a pol­i­tics em­bar­rass­ment.

But i will add an ad­di­tional re­mark that in the last ten years a sys­tem of ‘sealed en­velopes’ has de­vel­oped. We don’t know as cit­i­zens what is in those sealed en­velopes. Jeremy Ben­tham, the english philoso­pher, ju­rist and founder of mod­ern util­i­tar­i­an­ism, said in 18th cen­tury that “pub­lic­ity is the best dis­in­fec­tant.” There­fore, ad­min­is­tra­tion of jus­tice should be in pub­lic. That is car­di­nal prin­ci­ple of the rule of law. And ju­rispru­dence of ‘sealed en­velopes’ with­draws from the pub­lic in­for­ma­tion which is right­fully theirs. Be it in­quiry com­mis­sions or CBI, ev­ery­one is giv­ing sealed en­velopes. You never get to know what is in the sealed en­ve­lope. That is not jus­tice in my view. Jus­tice is done in broad day­light. A new ju­rispru­dence of se­crecy is be­ing evolved. it is un­con­sti­tu­tional, and should end.

You write that “there is no more de­mand­ing virtue than trans­parency.” Do you think that the higher ju­di­ciary has done enough to en­sure this?

i think ap­point­ment and dis­ap­point­ment go to­gether. For ev­ery ap­point­ment you make there are many qual­i­fied peo­ple who are dis­qual­i­fied. What you can do is to en­sure is that the proper pro­ce­dure is fol­lowed.

But there have been nu­mer­ous in­stances, for ex­am­ple, the Pun­jab and Haryana high court sug­gested names which were not qual­i­fied and it was only af­ter protests that they were re­jected by the supreme court col­legium. What is the way out?

The an­swer is sim­ple. To bring out a bet­ter judicial ap­point­ment com­mis­sion. i don’t know why af­ter NJAC was struck down there was no ini­tia­tive to de­vise a new way of ap­point­ment. The NJAC de­ci­sion was not a full stop to an at­tempt to de­vise a new method of ap­point­ment. The court only said that it [the NJAC Act] was against the con­sti­tu­tion be­cause it did not per­mit the supremacy of the ex­ec­u­tive in judicial ap­point­ments. The bench said that par­lia­ment is free to amend the con­sti­tu­tion and bring in a new bill. My ques­tion is why the ex­ec­u­tive did not take the ini­tia­tive to de­vise a proper sys­tem that was ac­cept­able to all. noth­ing in the judg­ment pre­vents the ex­ec­u­tive from do­ing so. A new con­sti­tu­tional amend­ment and a bill for a judicial com­mis­sion can be drafted/cre­ated which will seek to re­place the col­legium but take care that the pri­macy of the ju­di­ciary is main­tained and that the ex­ec­u­tive does not have any veto power.

What are your views on the judg­ment in the case re­garid­ing the SC/ST (Pre­ven­tion of Atroc­i­ties) Act wherein the at­tor­ney gen­eral ar­gued that only the leg­is­la­ture has the sole pre­rog­a­tive of mak­ing laws?

i have read the judg­ment care­fully. i think the court mis­led it­self on read­ing the ag­gre­gate sta­tis­tics. dis­ag­gre­gat­ing such data is quite hard work. We do not know ac­tu­ally how many cases of so-called mis­use are there (‘mis­use’ here is not a le­gal ex­pres­sion but a pop­u­lar­ized ex­pres­sion). so, they made some kind of es­ti­mate, which can be con­tested. Then they spoke of the power of Ar­ti­cles 14, 19 and 21 to see that no innocent per­son is sent to jail. My counter-ques­tion is: What about Ar­ti­cles 17, 23 and 24? ours is the only con­sti­tu­tion that cre­ates of­fences. But no con­sti­tu­tion in the world de­ters the con­duct as an of­fence.

The court says it has the power to is­sue di­rec­tions. Yes, it does, but it also has the power/duty to give di­rec­tions un­der Ar­ti­cles 17, 23 and 24. But the idea that the court can­not is­sue di­rec­tions is wrong: How come sav­age atroc­i­ties and overt acts of caste hos­til­ity and dis­crim­i­na­tion still con­tinue? if there is mis­use, it is a mat­ter of con­cern and it should be prop­erly pointed out to par­lia­ment. Crim­i­nal law, i be­lieve, is not a sub­ject for judicial ac­tivism. i am a strong sup­porter of judicial process and lead­er­ship, but i am not at all a sup­porter of the ju­di­ciary act­ing to cre­ate of­fences and pun­ish­ments. That must be left to par­lia­ment or leg­is­la­ture.

When the higher ju­di­ciary says that you have to stand up for national an­them, do you feel it over­step­ping its ju­ris­dic­tion?

i, like ev­ery con­sti­tu­tion­ally sin­cere in­dian, be­lieve in re­spect­ing the national an­them. But if the court cre­ates a new crime by a judicial de­ci­sion, i op­pose it. The court can­not, the court should not cre­ate new crimes and pun­ish­ments: that is strictly the job of leg­is­la­tures (what i call ‘legis­pru­dence’). All that the court can do is to en­force a crim­i­nal law and is­sue di­rec­tions un­der Ar­ti­cle 32 to pre­vent and pun­ish vi­o­la­tion of fun­da­men­tal rights.

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