Independence of Judiciary versus judocracy M. Saidullah, Member Bihar State Bar Council There is no denial of the fact that independence of judiciary is essential for just society. The history is replete with numerous instances when the sense of injustice disturbed the peace of the society. The feeling of injustice always creates furore in the human life, in the life of the nation and in the society in general. The framers of the Constitution were conscious of this fundamental element for free and peaceful life of the nation as well as development of the nation towards achieving egalitarian goal. The independence of the judiciary was in the mind of the freedom fighters by way of reaction to colonial experience. It is in this background the Constitution of India contains elaborate provisions regarding appointment, removal and service security of the judges. Article 124(4) which is applicable to High Court Judges vide Article 217((1)(b) which reads: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of the that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.” The Framers of the Constitution also defined the power and jurisdiction of each organs of the State and prescribed certain basic limitation on such power to limit misuse and for maintaining the balance in the functioning of the State as whole. Article 121 of the Constitution restricts any discussion in the parliament regarding conduct of any Judge of the Supreme Court or of a High Court except in the impeachment proceedings. Similarly, Article 212 prohibits any inquiry into the proceedings of the Legislature by the Courts. A complete ‘check and balance’ mechanism has been put in the Constitution itself. Thus, the independence of Judiciary is constitutionally protected and secured. Historical background The functioning of the State’s organs within the parameters of the Constitution was more or less maintained till Indira Gandhi regime. The tenure of India Gandhi did see many ups and downs in the relationship of executive and judiciary. The split in the Congress Party has created such occasion. A lot of welfare measures faced hard time in the Court and in order to retain gravity of power around her she made blunders. Unlike of her father Jawaharlal Nehru she interfered with the seniority of Judges in securing congenial atmosphere in the Court. Her father in the event of striking down of Land Reforms measures by the Court introduced the First Amendment to the Constitution to resolve the contradiction between Executive and Judiciary. The validity of the First Amendment Act was upheld in the Supreme Court. The delicate balance between judicial independence and executive action was achieved by seeking solution in the Supremacy of the Constitution. It is believed by some scholars, that India Gandhi did impose emergency on the Nation, but for decision in A.D.M. Jabalpur case by the Supreme Court wherein personal liberty was down played in face of State’s authority to curtail the liberty. This was an era of ‘Executive’ overreach. The executive unsettled the practice to appoint senior most Judge of the Supreme Court on the post of Chief Justice of India. Justice H.R. Hanna was victimised for his view in Keshwanand Bharti Case. Her election dispute also contributed to degeneration in the polity of the Republic. In this back ground the Supreme Court overruled the S.P. Gupta case for executive primacy with judicial primacy. Judicial Overreach The judicial overreach has been described as judocracy. There is criticism of the Judiciary for interfering in the executive power of the State. This overreach is justified on the ground that executive failed in its obligation and the Court gets authority to correct the error in its power and status of being protector of the Constitution. A number of decisions for the public benefit of the Supreme Court and High Courts enhanced its image in the eye and estimate of the public. Some uncomfortable decision prima facie encroachment upon the executive and legislative power of the State was also given. The Constitutional golden balance appears to be torn down. A direct question has been put, as to whether in the failure of judiciary to clear the arrears of the cases, on the same principle the executive may claim judicial power of the Courts. Judiciary comments on the other institution off and on. The Bar Council has been described to have failed for not dealing with the misdemeanour of the lawyers. The same set of behaviour is found on judicial officer who is often overlooked. The Judiciary overreached into the proceedings of legislatures as if Article 212 is not in the Constitution. This had led to crisis between the then Speaker of LokSabha Somnath Chatterjee and the Supreme Court. A number of such interference into the legislative proceedings is in the public realm. Hon’ble CJI in his address (after assuming office) in the BCI sees merit in the collegium system with admission of its some dark side. With great respect to his opinion it is pointed out that the Judges are not elected by the people and they are not answerable to the people. In the Constitution, democratic governance and not governance by judiciary has been envisaged. The direct question of the efficacy of the two system i.e. collegium system and commission system is being debated. There is argument in for and against for both the system. The dynastic judgeship is being cited along with other shortcomings against the collegium system. The question of corruption in the judiciary is equally embarrassing question. How and in what manner the collegium would cure it and place machinery for its redressal is concern of the intellectual. Some says that collegium system is failure and some entertains fear in the older executive primacy. Independence of judiciary is put forward to resist the commission system. But the argument is peculiar in itself, whether judicial primacy is synonym of independence of judiciary. India has got collegium system which has got no parallel in the whole world. Indian Judiciary often cites American Judicial System as beacon light, but there it is the executive who appoints judges.Democratic institutions failing in its duty and casting aspersion on the other democratic institutions is not healthy symptom. Balance was conceived not autonomy of one organ over theother organ in the Constitution. Collegium vs. Commission In the Collegium and Commission both it is the CJI who is the Chairman. The interference of corrupt politician in the appointment of Judges is cited as ground for the protest of National Judicial Appointments Commission Bill (N.J.A.C.). It should be considered that appointment of Judges by Commission is an improvement over Constitutional arrangement for such appointment. The machinery of the appointment not always matters. Justice H.R. Khanna and other imminent personalities on the Bench of the Supreme Court were all appointees under the previous constitutional system. The appointees by the Collegium have generated debate over its efficacy. The person holding executive portfolio is all corrupt and persons holding judicial chair are honest, such generalised statement is not correct. A Bench consisted of Justices K Mathur and Markandeya Katju held that “Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other’s domain,” What is needed is the transparency in the appointment process and transparency in the life of the Judges. The people i.e. ‘We the People,’ must have freedom to say wrong as wrong. The freedom of the people has been over-shadowed by the antiquated law of contempt. The truth has been made defence to contempt proceedings, but what is truth and when it would be in the interest of justice to allow it as defence is to be decided by the Court who is prosecutor and judge both in contempt matter. The Nation has got its own way of life, and chance to judicial appointment by Commission would be in the interest of Nation and People both. Bar Council of India Role During emergency and after emergency the Bar Council of India rendered splendid service to the nation and strieved for smooth functioning of the rule of law. The deprivation of liberty of the people during emergency was grave concern in the legal fraternity and Bar Council of India duly discharged its duty in protecting the freedom and liberty of the citizen and public at large. The‘Indian Bar Review’( a Journal quarterly published by B.C.I. Trust since 1972) would furnish proof of it. Recent Development The Raj Ghat protest by way of demonstration by the leaders of B.C.I. and State Bar Council on 3.8.2013, to oppose the tabling of National Judicial Appointment Commission Bill in the Parliament in the current Manson session is contrary to its own Resolution in which B.C.I. demanded its say in the judicial appointment at centre and state level. The BCI’s resolution reads thus, “After a thorough consideration, the council is of the opinion that this is a very serious issue and the BCI as well as state bar councils are also feeling that in the matter of appointments of High Court and SC judges, the bars should also have a say and the concerned bar should also be taken into confidence before the recommendations of names for the appointments.” The say of the Bar Council can be possible under the Commission System and not under the Collegium System.Bar Council of India demands its say in the judicial appointment etc in the month of May, 2013. Now the agitation of the B.C.I. is to protest the legislation for judicial commission. Earlier the B.C.I. had under-taken programmes against curtailment of wings of Bar Council under the dictated corporate interest. What happened to the agitation is not made known to the lawyers. It is relevant to recall the Hon’ble Chairman B.C.I. ShriMannan Kumar Mishra on May 19, 2012 in joint meeting with the Chairman and Vice-Chairman of the State Bar Council indicted KapilSibal to minimize/annihilate the role of Bar Council being influenced by American corporate lobby. He had specifically referred to his visit to America which according to him had changed the Sibal approach to August Institution of Advocates i.e. Bar Council of India. Indeed, in his able leadership programmes were choked out and some of them successfully implemented.The concern of Hon’ble Chairman was confirmed by the speech of Hon’ble Prime Minister in the VigyanBhawan (16/17 February, 2013) on the occasion of Golden Jubilee Celebration of the establishment and successful functioning of Bar Council of India since 1961, when he (Hon’ble Prime Minister) said that world is changing and to keep pace with change ‘Legal Profession’ needs immediate change. He asked the lawyer community to show the ways and means of such necessary change. The call to protect the August Institution of lawyers namely the Bar Council had created enthusiasm among the lawyer all over the country. The lawyers were ready to participate in the programme of the B.C.I. in the monsoon session of 2012, but abruptly this programme was scuttled down like recalling of agitation by Mahatma Gandhi after ‘Chaura-Chauri’ incident during freedom fight. But, there was difference also in these two incidents Mahatma Gandhi was transparent and open but Mr. Mishra was opaque and secretive. The Nation disillusioned in either way to fight against the foreign conspiracy to enslave India. Conclusion According to the ‘Basic Structure Theory’ and also in accordance with Sanskrit Maxim ‘Ati sarbtra varjayit’ the collegium system has lived its life and it needs to be abdicated in the greater benefit of Nation and ‘Rule of Law’. The Commission System would be better choice where all the stakeholders would have say in the efficient, fair, and just administration of justice. The primacy of ‘Executive’ in S.P. Gupta Case or the primacy of Supreme Court in Supreme Court Advocates-on-Record Association case both are the two extremes and akin to veto power in the Security Council. The veto power is autocratic and anti-thesis of democracy. I would like to conclude with the opinion of Justice H.R. Khanna which he had given in capacity of Chairman of the Law Commission on appointment of judges in higher judiciary, “In case of any difference between the members of the panel, the view of the majority should be considered to be the view of the panel.” End notes: 1. Constitution of India. 2. Kameshwar Singh Vs. State of Bihar AIR 1951 Pat. 91 3. State vs. Kameshwar Singh 1952 SCJ 354 4. Constitution First Amendment Act 5. Thaneshwari Prasad vs. Union of India, AIR 1951 S.C. 458 6. A.D.M. Jabalpur vs. S. Shukla AIR 1976 SC 1207 7. Asian Age, August 5, 2013. 8. Hindustan Times August 5, 2013. 9. Economic Times, May 13, 2013 10. Legally India.in 11.6.2013 11. Live Law.in 11.6.2013 12. Subhash Sharma vs. Union of India AIR 1991 SC 631. (Collegium) 13. Supreme Court Advocates-on-Record Association and another vs. Union of India AIR 1994 SC 268 14. S.P. Gupta vs. Union of India AIR 1982 SC 149 15. KesavanandaBharati v. State of Kerala AIR 1973 SC 1461 16. Neither roses nor thrones, H.R. Khanna Ex. Judge of Supreme Court of India. (Page 104) 2011, Edition.
Posted on: Mon, 12 Aug 2013 15:06:24 +0000
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