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Remedy worse than the disease

Next Saturday, Justice S. Rajendra Babu will be sworn in as the Chief Justice of the Supreme Court. Technically, his tenure will be for one month but the reality is rather different. He would be at the helm for precisely four working days. Thereafter, the court would go into summer vacation and Mr. Babu will have retired well before it reconvenes. This is a far from healthy situation and, sadly, it is not an exception. On the contrary, it is rather typical.

During the Eighties, for example, K.N. Singh presided over the Supreme Court for exactly 18 days. Last year, the turnover of Chief Justices was so swift that four of them came and went. Careful observers of the judicial scene have indeed tabulated that while this country has had 34 Chief Justices during the 54 years since the commencement of the Constitution, the United States has had only 11 in its entire history of 228 years.

The painful story of how the country has landed itself in the present state of affairs goes back to exactly 31 years. For, it was on April 25, 1973 that the then Prime Minister, Indira Gandhi, superseded three senior Supreme Court judges — J.M. Shelat, K.S. Hegde and A.N. Grover — and appointed A.N. Ray the Chief Justice of India. All hell broke loose.

Protest across the country was immediate and vociferous. Indira Gandhi's prestige, at its zenith immediately after the 1971 War for the liberation of Bangladesh, had plummeted by then. Many were questioning her democratic credentials and they believed that in the supersession of judges they had got their proof. Her supporters, led by a member of her Cabinet, Mohan Kumaramangalam, justified her action, of course, equally emphatically, arguing that a judge's "philosophy and outlook" was germane to his promotion. But the dominant view of the public was negative.

It was summed up by a galaxy of legal luminaries — such as M.C. Setalvad, M.C. Chagla, V.M. Tarkunde, and N.A. Palkhivala, to name only a few — who jointly declared that Indira Gandhi's decision was "a manifest attempt to undermine the court's independence." The Supreme Court's Bar Association, "in a high pitch of excitement," endorsed this view.

The Emergency overtook this controversy along with almost everything else. By the time the "Empress" was overthrown and the Janata Party rode to power, it had become axiomatic that seniority — that has always had a stranglehold on Indian society and the State system — would be the sole and inviolable criterion for the appointment of the CJI. And so it has been even though Indira Gandhi was back in power within 30 months and after her assassination, her son, Rajiv Gandhi, ruled for five years with a four-fifth majority in the Lok Sabha.

By now, this has clearly become a classic case of the remedy being worse than the disease. How can the heads of the highest court in the land play an effective role in running the nation's vital and gigantic judicial system if they remain in the saddle for ridiculously short periods? Recent developments in the realm of justice have lent this question a sharper edge.

To drive home the point, one has only to mention the depressing goings-on at the Punjab and Haryana High Court that centre on, of all things, honorary membership of a golf club. A lot more disturbing is the manner in which the Best Bakery case has been handled in Gujarat — the worst case of perversion of the entire process of criminal justice as pointed out by the Supreme Court. In the measured words of Justices Doraiswamy Raju and Arijit Pasayat, the investigative agency "failed to demonstrate any credibility," the public prosecutor acted like a "defence counsel," the trial judge "stood mute" to all the motivated "manipulation," and the High Court itself "miserably failed to maintain judicial balance and sobriety." Unsurprisingly, the Narendra Modi Government has filed a revision petition but it is yet to be heard by the Supreme Court.

To be sure, fears of political motivation behind the appointment of chief justices, with a view to "packing the court," have to be addressed. To follow the American system of all top judicial appointments, like those in the military and diplomacy, being approved by a parliamentary committee may not be feasible here. But, surely, the world's largest democracy can devise a good enough mechanism to ensure fairness in the highest judicial appointments. For instance, a committee headed by the Vice-President that includes both the Prime Minister and the Leader of the Opposition, two or three former Chief Justices and some towering lawyers can serve the purpose of selecting the best available individual who also has a chance to serve for a reasonable length of time. A useful convention of the Army can perhaps be borrowed with some profit. Whichever Lieutenant General does not have a full two years of service left is not elevated to the crucial post of Army Commander.

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