Over the last two decades, the attention devoted to the role of the judiciary has increased almost exponentially. It is rare for a day to pass without at least a couple of front page stories in our national dailies devoted to what transpired in the constitutional courts. Even as I write this, the cameras are slowly turning towards the Supreme Court to see how the Maharashtra imbroglio will play out. It is not surprising, therefore, that the events at court invite opinions and views, many of them from those who ply their trade within those hallowed portals (which includes this writer). Most of these pieces are devoted to specific judgments and ephemeral events, but ever so often, we see one that deals with institutional issues — larger malaises that need to be addressed — and then, we consider those suggestions through a wider lens.
One of these is Sriram Panchu’s article ‘A wish list for reform in India’s higher judiciary’ (published in The Hindu on June 22, 2022). There are, of course, a couple of good points made (even if I were to ignore the rumour he refers to in the first paragraph) – that the retirement age of all judges should be on par and that there is no reason to believe that judges lose their abilities in their early sixties. These issues are not new, though, having been raised 50 years ago by the Law Commission of India in its 58th Report, and then again in the Constitution (114th Amendment) Bill, 2010, which subsequently lapsed.
The most critical role
Where I part company from Mr. Panchu is in his belief that judges, once retired, ought to have a sense of public service, and to make matters worse, that they should be encadred for appointments and special assignments. I need scarcely point out that Judges of the Supreme Court are solemn constitutional authorities who discharge probably the most critical role in the Republic. Many of them have swapped storied and lucrative careers to settle for a tiny fraction of their annual income, an overwhelming workload and a virtually non-existent social life. From these glorified confines where they are not supposed to react to criticism, surmise and even invective, we expect these women and men to offer a sterling quality of justice, apparently unaffected by sleepless nights, overburdened rosters and multiple administrative tasks.
I do not believe that these citizens of our country who have sacrificed so much need lessons in “public service”. After having devoted two score years of their lives to precisely that, they are allowed — nay, entitled — to choose legal and ethical avenues to keep themselves occupied. Arbitration, which reduces the burdens of a creaking trial court system, only furthers the interests of the public and of the parties involved, and even if it did not, it is unclear why a retired judge has to be visited by an alien tenet of offering charity even after she has superannuated.
Calling upon Senior Advocates
In fact, the lament that judges make “fortunes” through post-retirement arbitrations and that a minority of them devote themselves to public service is misdirected. Maybe it would be more appropriate to turn the proverbial mirror on the very tribe to which the two of us belong – Senior Advocates. It is no secret that the upper echelons of this club (of which I am regrettably not a part) are among the highest earning lawyers in the world, easily making millions of dollars a month.
If at all, it is to them and others of their ilk that appeals for public service should be addressed. Surely, the dozens of years devoted to amassing wealth could now make way for the “public service” that we demand of others? Maybe it is time to have a retirement age for senior counsel – they can spend their latter years in giving back to the profession through teaching at universities, aiding the Law Commission or even writing thoughtful pieces.
Choosing the Chief Justice of India
Now, Mr. Panchu’s next suggestion: that the Chief Justice of India’s successor should be “the best reputed Chief Justice of a High Court” at the time. Forgetting for a moment that most of the other judges of the Supreme Court would have been Chief Justices of High Courts, to leapfrog over all of them and settle on someone completely new to the Supreme Court is absurd in the extreme. In addition, who decides on the “repute” of a Chief Justice? We have had four substantial judgements of the Supreme Court in 1981, 1993, 1998 and 2015 which have reiterated the independence of the judiciary and attempted to cement it with a collegium system – should we then hark back to the dark but unforgotten days of the 1970s when not one but two supersessions blighted the appointment of the Chief Justice of India by falling back on a subjective idea of ‘repute’?
As for the seniormost judge being appointed to the top post, it is well known that this rule came in because of the unanimous stand of all the Supreme Court judges of 1951 threatening to resign if the seniormost (Madras’s very own Patanjali Sastri) were to be overlooked in favour of Bombay’s M.C. Chagla as Jawaharlal Nehru wanted. That intervention became practice and, except for the two supersessions and one medical exception, has never been departed from in 72 years.
I share Mr. Panchu’s abiding concern about the fate of our judiciary, and I fully agree that Chief Justices ought not to have their “unfettered way” as he so eloquently puts it. But so much of that is based on individual personality – few would contest the fact that the last 14 months under Chief Justice N.V. Ramana have shown that a truly collegiate approach is possible, and there have been no questions raised about roster allocation, such as those that plagued his predecessors. Maybe it is time for acta, non verba (action, not words).
Gopal Sankaranarayanan is Senior Advocate, Supreme Court of India