Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, ‘Be you ever so high, the law is above you.’ This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.
These words of the Supreme Court of India evidently elucidate the expectation from its judges. Mr. Justice Jagdish Singh Khehar, perhaps more than any other contemporary Indian judge, has demonstrated this stern stuff and tough fibre. Erudite, possessed of intellectual sensitivity and judicial courage, he led the five-judge constitution bench which struck down the NJAC Act. Justice Khehar also headed a historic bench that reinstated the Congress-led Arunachal Pradesh Government and held all the actions of the Governor violative of the Constitution. Alluding to S R Bommai v. Union of India [(1994)3 SCC 1] the bench avowed that it had “all the powers to put the clock back”. Justice Khehar on the occasion of Constitution Day responded to the diatribe from Attorney General for India, by saying that the judiciary is functioning within its “lakshmanrekha.” The two judgements of Justice Khehar had placed government in an uncomfortable situation; therefore speculation about a third supersession was obvious in corridors of Supreme Court. However, perhaps because of his being a Sikh and from Punjab facing assembly elections or for whatever other reason, he has taken oath today as the 44th Chief Justice of India.
It was Justice J.S. Khehar who gave new life to the collegium after declaring the government’s NJAC law unconstitutional, although the majority view was reprimanded by the dissent of Justice Chelameshwar as repugnant to the spirit of the Constitution. Criticizing the functioning of present collegium system, Justice Chelameshwar observed that absolute independence of any one of the three branches is inconsistent with core democratic values and the scheme of our Constitution. The amendment only seeks to restore such balance and therefore cannot be said to be destructive of the basic structure of the constitution. Later, he refused to participate in meetings of the collegium.
Khehar proceeded to invite public opinion on ways to improve the opaque collegium system of judicial appointments and after receiving over 11,500 views from the public, the Bench directed the government to draft a new Memorandum of Procedure (MoP). This MoP is a persistent bone of contention between the Centre and the Supreme Court. The first challenge before the new Chief Justice therefore would be to give meaning to this dream of the majority in NJAC case. It is now inevitable for the Chief Justice of India to unknot the predicament by addressing genuinely queried issues of transparency and accountability in the collegium for otherwise the conscience of people will be intimidated.
Delay in filling vacancies in the sanctioned strength of Courts and in increasing the sanctioned strength to meet the increase in the institution of cases renders the judiciary inadequate to deliver its constitutional mandate. Bringing the judiciary into this state of adequacy has been the singularly constant finding of all Government Committees and Commissions on Arrears in Courts. All these fact-finding bodies have unvaryingly recommended increasing the strength of judges [See Rankin Committee 1925 to the 189th Law Commission Report of 2004]. These recommendations as well as those of the All India Chief Justices Conference have remained unimplemented.
same applies to the implementation of the orders of the Supreme Court in All India Judges Association case [(1993) 4 SCC 288] followed by Brij Mohan Lal case [(2002)4 SCC247]. Even as there is a national debate on arrears, new arrears accumulate daily. Putting courts in a situation whereby Judges are unable to deliver the public’s fundamental right to timely justice is to deny access to justice and thereby undermine the sole purpose of judicial independence and constitutionalism. Hence, the second major challenge before Justice Khehar would be to foster the relationship where appointments are made smoothly.
is no magic wand to resolve the present judicial crisis. Increasing judges’ strength through an emotional outburst as by Justice Thakur will not fix problems. The government and civil society are constantly asking what initiatives Supreme Court has taken for ensuring more accountability in the judicial wing. Why do constitutional courts in India still follow the archaic ritual of long vacations? Why is the Supreme Court not able to take concrete steps to abolish the culture of adjournments? Why have initiatives not been taken to reform the Bar and to make it more accountable? Justice Khehar must make some hard decisions. He must set the ball rolling by taking some positive reformative measures otherwise the judiciary of the largest democracy will succumb under the weight of its own responsibility and it will be difficult to resuscitate the diminishing confidence of people in the judiciary.
Justice Khehar will retire on 27 August with a discourteous summer vacation of one and half months in between. In such a short stint, no one will be able to accomplish his dream. Thus, questions on the functionality of the ritual that the senior most judge shall be the Chief Justice too become relevant. In the absence of any constitutional provision this convention was nurtured (with two exceptions) to avoid any controversies. But this convention unleashes rapid succession of CJIs with short stints of one, two or a few months. Within the Supreme Court structure all powers revolve around the office of Chief Justice and in the absence of a fixed minimum tenure, no chief justice can hope to reform the judiciary and thereby ensure its independence on aspects other than appointment of the CJI.
The writer is Deputy Registrar, Supreme Court of India.