Protecting the judiciary

Irrespective of the background of an unprecedented complaint against a judge of the Supreme Court, an in-house inquiry resulting in its rejection, the recommendation of the present Chief Justice India S A Bobde to appoint the next senior judge Justice N V Ramana as the 48th Chief Justice of India should be accepted for the sake of the independence of the judiciary.

The unwritten constitutional convention demands the Narendra Modi government accept this formal recommendation of the CJI. The CJI made the recommendation after dismissing a complaint made against Justice Ramana by Andhra Pradesh Chief Minister Jagan Mohan Reddy.

The fact that an occupant of a constitutional office like that of the chief minister levelled some allegations, makes it significant. The matter of a chief minister facing 31 criminal cases and the Bench headed by Justice Ramana was hearing a PIL for a speedy trial of charges against politicians, including this CM, cannot be used to interfere with the process of Justice Ramana’s appointment.

When the chief minister levelled serious allegations against Justice Ramana, there were some apprehensions that the executive was unnecessarily given a chance to interfere with judicial functioning. The complaint of a chief minister necessitated an inquiry as per the rules and regulations of the Supreme Court’s internal administration, which the CJI has meticulously followed.

Even the silence of the office of the CJI over that complaint became a subject matter of speculation. As the CJI’s retirement date, April 23, 2021, was nearing, the suspense about the next incumbent increased. The Government of India rightly asked the current CJI to initiate the process of filling the top post of judiciary. That was a required step. Then, there was an obstacle in the form of a complaint of Jagan Reddy.

Neither the media nor any other forum has any scope of knowing the details because the CJI classified it as confidential and not disclosable. It is unfortunate that the apex court that directs every other institution to be transparent, believes in secrecy of in-house inquiries in the apex court. If this becomes a precedent, the purport of the law of Right to Information will not be served.

There is no scope now for the executive to supersede the senior-most. Indian judicial history recorded two instances of supersession, which impacted the independence of the judiciary. In 1973, Justice Ajit Nath Ray was appointed as the Chief Justice of India superseding three senior judges — Jaishanker Manilal Shelat, A N Grover and K S Hegde. This supersession by Indira Gandhi was a frontal attack on the independence of the judiciary and an unprecedented executive excess.

Question is, why was Justice Ray preferred to three seniors by the then prime minister? After decades of struggle for supremacy between the executive and the judiciary, the Supreme Court imposed a strong limitation on the power of the Executive and Parliament to amend the Constitution.

While agreeing that Parliament can amend any part of the Constitution, including the fundamental rights chapter, the Supreme Court said it cannot destroy the basic structure. Who will decide what the basic structure is? The Supreme Court. The majority included the three Justices J M Shelat, Grover and Hegde. That judgement was very costly. The three lost not only the position of the CJI but also the remainder term as judges of the Supreme Court.

The Fourth junior judge, Justice A N Ray, was preferred because he did not agree with the basic structure doctrine developed by the majority of judges in the Kesavananda Bharti case, and profusely believed in the executive supremacy over judicial independence. He was also the lone dissenter among the 11-judge bench, which held the Bank Nationalisation Act as unconstitutional in 1969. As the Chief Justice of India, Justice Ray made himself, sadly, amenable to be influenced by the prime minister.

Another sad day

Another landmark order of the SC by the bench headed by Chief Justice Ray was ADM Jabalpur v Shiv Kant Shukla, where the SC reversed several High Court judgements, to uphold the powers of the government to suspend fundamental rights during the Emergency. It was a Constitutionally wrong decision, going against the civil and human rights which have to be supported by the guardian — the Supreme Court. This was recently overruled.

The historic dissent of dynamic judge H R Khanna, in this case popularly known as the Habeas Corpus case, is the law today. But Justice Khanna could not become the Chief Justice because of this dissent, as Indira Gandhi again chose to supersede him and appoint the next senior Justice Beg to the top post.

Justice Hans Raj Khanna reportedly told his sister on the day of the delivery of the judgement that what he was going to pronounce would cost him the position of the Chief Justice of India. And it happened in 1977. He did not regret dissenting. Significantly, almost all other judges, who said that fundamental rights can be suspended, apologised later.

The Constitution does not say anywhere that the senior-most judge shall be appointed as the Chief Justice. But it became an established constitutional convention for protecting the independence of the institution.

There are two kinds of threats to judicial independence – one, fear of supersession and the other is the allurement of post-retirement rehabilitation, where the chief justices look forward to becoming MPs, governors or hold some other lucrative offices.

When Jagan Reddy complained about Justice Ramana, speculation of possible supersession were rife. As decks are cleared now, the prime minister or the law ministry should accept the recommendation and pave way for Justice Ramana to assume the office of the CJI. Both judiciary and executive should make all efforts to uphold the independence and integrity of judicial offices, especially the highest office — Chief Justice of India — and protect it from all kinds of threats and allurements.

(The writer is former Central Information Commissioner and Professor of Law at Bennett University)