OUT OF COURT
One of the situations the makers of the Constitution seem to have left out to consider is the tenure of chief justices of India, leaving it to be evolved through convention. Thus, we have three chief justices this year, the present one’s eight-month term ending this week. There have been judges with only 41, 35, or 17 days while one had a run of more than seven years.
According to convention, the senior-most judge is elevated when the incumbent retires, irrespective of the length of tenure. Several jurists have suggested a fixed, longer tenure for chief justices, so that they can give a consistent direction to the court. But the idea has its own perils. The second senior judge, along with those in the line of seniority, would be miffed if a junior with longer tenure is elevated over his head. Indira Gandhi superseded the senior-most judge twice, not on the principle of long tenure, but on the theory that judges should be committed to the economic and social philosophy of the government of the day. Though it is the dream of every government to get fellow travellers as judges, the two decisions led to unsavoury results. No government has tried to burn its fingers again.
The Law Commission recently suggested a two-year fixed term for the CJs. According to it, the suggestion could be implemented from 2022, when the junior-most judge, who is slated to be CJ, retires. This would not upset the line of seniority of the current batch of judges. The government has also mooted the idea, with one year as the minimum term. Data from 1997 show that out of 17 chief justices appointed, only three had tenures of more than two years. The short terms do not allow them to take longterm decisions.
If the plan is implemented, the government will have one more criterion in choosing judges. At the time of appointment, the calendar will show whether the judge would become the CJ at a later time, following the seniority convention. The two-year term will be an additional factor. This, along with informal norms like representations based on language, geography, religion, caste and sex would make selection a complex process, not to speak of the divisions in the collegium selecting judges and the court’s own differences with the government.
There are unstated criteria too, like the ideological background of the candidates. In a glaring case, when V R Krishna Iyer’s name came up in the past, there was a huge protest because of his avowedly communist background. In this Aadhaar era, it is possible to trawl the judgments and find out the political and social philosophy of a judge. In the US, the legal profession and media tend to paint judges as conservative, liberal, affirmative and in other rainbow colours. Commentators in this country have largely avoided such paintbrushes. One reason apparently is that the chief justices have short tenures, allowing them little time to leave their stamp on the judiciary or improve its working.
Expecting judges with long tenures to make substantial reforms may be aspirational. Though there have been CJs with comfortable tenures, their reigns have not been remarkable for any major reforms. In fact, the descent of the system was unremitted during the regimes of the 44 CJs so far. The backlog of cases has only gone up, digitalisation is far behind the times, the chaos inside the court reminded the former CJ of a fish market.
Most CJs have stuck to their judicial work and administration has taken a back seat. The present incumbent, J S Khehar’s administrative hands were full protecting the independence of the judiciary against executive pressure. The CJ-designate, Justice Dipak Misra, has to continue the struggle in his oneyear term and deal with sensitive issues like Ayodhya. He has been criticised for making the singing of the National Anthem compulsory in cinema halls, upholding the validity of widely-misused criminal defamation, widening the net of obscenity benefitting moral policing and sex discrimination by ruling that only male makeup artistes in Bollywood can become members of their association. Cynics might join the dots and find in them a reflection of the current zeitgeist.
For the moment, we could relax (if we can) reading his judgments containing some of the longest sentences ever written, packed with intriguing expressions. His criminal defamation judgment “exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions…”