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LEGALLY SPEAKING Are judges, serving & retired, the sole repository of rectitude in public life?

January 27, 2020 05:26 AM

COURTESY TIMES OF INDIA JAN 27

LEGALLY SPEAKING
Are judges, serving & retired, the sole repository of rectitude in public life?
Dhananjay.Mahapatra@timesgroup.com

Judiciary is virtually running the country’. This decade-old common public refrain is getting shriller. From the freedom struggle days, people tend to romanticise anyone who courageously stands up against the mighty government.

Till the advent of coalition politics, which allowed leaders of smaller political parties to flex muscles, the judiciary usually adhered to its constitutionally defined role. Squabbling in coalitions for a greater share in corruption-ridden governments eroded public faith in politicians. This created space for the judiciary to earn public adulation for calling a spade a spade. The praise emboldened constitutional courts to continuously ‘experiment with the elasticity of their jurisdictions’ and step into the exclusive turf of legislature and executive.


A prime example of this ‘experiment’ came last week in the Supreme Court’s judgment in Keisham Meghachandra Singh case. A three-judge bench headed by Justice R F Nariman dealt with the impartiality and expediency with which petitions seeking disqualification of people’s representatives for alleged anti-party activities should be decided.

In an unprecedented ruling, it fixed a three-month limit for a Speaker to decide such petitions. What will be the judges’ reaction if the legislature asks them to give decision in each case within six months? The bench went on to recommend obliteration of the Speaker’s role altogether in dealing with such petitions. It advised Parliament to amend the tenth schedule to set up a permanent tribunal headed by a retired SC judge or HC chief justice, or some other independent mechanism for swift and impartial decision.

In November last year, an almost identical issue — disqualification of Karnataka MLAs by the Speaker for defection — engaged an SC bench headed by Justice NV Ramana. It did not experiment with the ‘elasticity of jurisdiction’, even though it called a spade a spade by regretting the partisan conduct of speakers.

“The Speaker, being a neutral person, is expected to act independently while conducting proceedings of the House or adjudication of any petition… His political affiliations cannot come in the way of adjudication. There is a growing trend of speakers acting against the constitutional duty of being neutral,” it had said.

What differentiated the two judgments is the recent order’s suggestion for creation of a permanent panel headed by a retired SC judge or HC chief justice. This appears to stem from a presumption, which has gained currency in the recent past both among the judiciary and the public, that judges are infallible.

Chief architect of the Constitution, B R Ambedkar, had refused to put his money on this presumption. Rejecting demands in the Constituent Assembly to make it mandatory for the President to appoint SC and HC judges with the concurrence of the Chief Justice of India, he had said on May 24, 1949, “With regard to concurrence of CJI, it seems to me that those who advocate that position seem to rely implicitly on the impartiality of the CJI and the soundness of his judgment.

“I personally feel no doubt that CJI is very eminent person. But after all, the CJI is a man with all failings, all sentiments and all the prejudices which we as common people have; and I think, to allow the CJI practically a veto upon the appointment of judges is really to transfer the authority to the CJI, which we are not prepared, to veto the President or the government of the day. I, therefore, think that is also a dangerous proposition.” This was accepted by the Constituent Assembly. Half a century later, that “dangerous proposition” became reality. The Supreme Court by its two judgments amended the constitutional procedure for appointment of Supreme Court and high court judges through judicial interpretation, without changing a letter either in Article 124 or Article 217 of the Constitution.

What is the guarantee that a retired SC judge or HC CJ, as head of a permanent panel to decide petitions under the Tenth Schedule, will do an impartial job? Then sitting SC judge Ranganath Misra headed a commission to inquire into the 1984 anti-Sikh riots, in which an estimated 3,000 people were killed. The commission found no one guilty. After completing his tenure as CJI, Justice Misra became a Congress Rajya Sabha MP.

There are so many such instances that would allow politicians to take potshots at the idea of a retired judge heading a permanent panel on the anti-defection law, which they feel squarely falls within the political thicket.

Probably, that was the reason which persuaded a threejudge SC bench headed by then CJI Ranjan Gogoi to delineate the role of the three constitutional governance organs in its judgment in ‘Dr Ashwini Kumar vs Union of India’ on September 5, 2019. It had said, “While exercising this power of judicial review, the courts do not encroach upon the field marked by the Constitution for the legislature and the executive, as the courts examine legality and validity of the legislation or the governmental action, and not the wisdom behind the legislative measure or relative merits or demerits of the governmental action.

“Neither does the Constitution permit the courts to direct, advise or sermonise others in the spheres reserved for them by the Constitution, provided the legislature or the executive do not transgress their constitutional limits or statutory conditions. Referring to the phrase ‘all power is of an encroaching nature’, which the judiciary checks while exercising the power of judicial review, it has been observed that the judiciary must be on guard against encroaching beyond its bounds since the only restraint upon it is the self-imposed discipline of self-restraint.” We say no more

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