Thursday, June 13, 2024
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Pick and choose in Judicial appointments

B L Saraf

“While hearing a petition alleging delay on the Central Government’s part in clearing names recommended by its collegium for appointment and transfer of judges, on 20th November a bench of the Supreme Court raised the issue of ‘pick and choose’ policy adopted by the Centre in implementing these recommendations.

The court observed that of the 11 names of judges recommended by the collegium for transfer only 5 have been transferred. Pain and anguish was palpable when one of the Hon Judges in the bench reminded the Attorney General “last time, I did emphasize that don’t do selective transfers. It creates its own dynamics.” The bench cautioned Government that pick and choose policy will send wrong signals. On all available indications one can surmise that the Central Government is seeing virtue in the policy of Mrs. Indira Gandhi adopted in this regard and is likely to implement it.

We may recall that it was former Prime minister ,Indira Gandhi, who sowed the seeds of ‘pick and choose ‘ policy , soon after the majority of the 13 judge bench of the Supreme Court ,in Kesvanada Bharti case , laid down the doctrine of ‘ basic structure ‘ declaring certain basic features of the Indian constitution beyond change and un amendable .Thus in a way setting the limits of parliamentary sovereignty . This majority judgment irked Indira Gandhi so much that in the very evening of the day judgment was delivered ( 24rth April 1973) she appointed one among the dissenting judges as the next Chief justice Of India – superseding three judges senior to him who, as consequence of the development ,resigned the very moment . Since then she ensured that only ‘ convenient ‘ persons of her choice made it to the constitutional courts, of course with a few exceptions. Thus “committed judiciary ” idiom entered the political cum legal lexicon of the country .
The ” basic structure ‘ (B S ) doctrine was anathema to Mrs. Gandhi that many a time during her rule attempts were made to overturn it but they couldn’t success . Incumbent Central Government has expressed an intention to pick the thread from where Indira Gandhi had left it. Therefore, we hear cries from the top functionaries of the Government, as also of a person holding high constitutional office, to do what the former PM couldn’t. It makes no sense to follow a bad precedent.

Noted constitutional authority and the former V C of Delhi University , Upendra Baxi has explained the B S theory in a piece published in Indian Express of 24 .4. 2023 , ” Implicit in the theory is the last word resting with the Supreme Court of India which is now duty bound to identify the ” constitutional scheme.” The “constitutional scheme”, in our case , is that the judicial independence is important as the essence of law which embeds both ” decisional autonomy ” and “institutional autonomy” .The latter implies freedom from state pulls and pressures . Baxi in the same article explains what the rule of law connotes ” the rule of law means that the parameters of decision making and discretion remain always circumscribed by the constitution and demand respect for ” constitutional conventions .” Concerned persons have been observing the developing trend to run down the judiciary. Former CJI.N V Ramana saw it coming in 2022 when he was at the helm.

He minced no words in expressing his fear and hit out at “forces whose only aim is to run down the only independent organ in the country.” He gave vent to these fears while speaking to the members of Association of Indian Americans in San Francisco who, on 2nd July 2022, had gathered to felicitate him.

Honorable Ramana castigated both ruling as well as the opposition political parties because ” the ruling party expects every action of the Government to be endorsed by the judiciary while the opposition wants the judiciary to advance its positions and causes .” According to him, the judiciary is answerable only to the constitution. And then pleads for promotion of a constitutional culture which , he says , can happen by ” enforcing checks and balances envisioned by the constitution .”
It looks to be a continuing process for the Governments to treat the judiciary with a scant respect. They do it in myriad modes – by withholding appointments, denial of adequate funds and ignoring vital judicial decisions. At times it becomes so frustrating for the heads of the judiciary that they are compelled to speak publicly. When he was the Chief Justice of India , T S Thakur while addressing conference of the Chief Justices and Cheif Ministers, where Prime Minister was present, said , in a choked voice , ” It is not only in the name of a litigant or people languishing in jails but also in the name of development of the country and its progress that I beseech you to rise to the occasion and realize that it is not enough to criticize . You cannot shift the entire burden on to the judiciary.” He was reflecting upon the appalling conditions of the judicial infrastructure and the huge pendency in the courts. Overwhelmed by the enormity of the situation, the C JI broke down in front of PM Narrendra Modi .

True words, indeed. Functional justice system is an authentic indicator of real socio- economic progress of a country and is reflective of nation’s resolve to adhere to the democratic values. In India Justice is a Constitutional mandate. Unfortunately the justice system is not working properly. CJI, Thakur as also his predecessors – and now his successors – have expressed a fear that it is collapsing . It has fallen on the deaf ears of the authorities. Exasperation on the failure was writ large in the choked voice of the then H’b CJ I as it is today manifest by the observations of the Apex Court , made almost on the daily basis .

The situation raises fundamental questions ; what are the impediments in dispensing justice in India , today . There are many : so can be the answers . Constraints of time and space will not permit a detailed elaboration here . But what happens at the top ( due to non co-operation of the executive ) will certainly percolate down to the District Judiciary with deleterious effect on the justice delivery system which today , for variety of reasons , is on the verge of collapse . That ensuing scenario will certainly not be good for the economic development of the nation.
The World Bank Report titled Comprehensive legal and Judicial Development noted some years back ” The elements of a well functioning justice system ultimately depend on the cultural context in which it operates – justice is defined by the society which it serves .” A non functional justice delivery system , apart from impeding economic progress , will not show our culture in good light – a culture we are rightly proud of .

It is time that the Memorandum of Procedure for appointing judges to the constitutional courts is put in place soon and effectively operational ized, so that appointments to the higher judiciary are expedited . This is the least the executive can do in respect to the wet eyes of the H’b Thakur Saheb , the then CJI , and persistent demands of the H’b DY Chanderchud ,the present head of the nation’s judiciary .

(The author is former Principal District & Sessions Judge)

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