Special: constitution expert upendra Baxi on the State of judiciary
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.