- Anchal Bhateja and Jisha Garg
Human beings are peculiar social creatures who can neither survive without socialisation nor can they prevent the inevitable frictions that stem out of it. The birth of these frictions and conflicts further gives birth to the need for having individuals and institutions that can resolve these frictions. Due to the nature of the role of these institutions and individuals, we tend to attach various virtues like impartiality, fortitude and moral courage to these individuals who are called Judges in common parlance and features like stability, fairness and independence to these institutions which are called courts in common parlance.
In India as well, the quantum of the trust reposed in judiciary and judges is exponentially higher than that, that is reposed in any individual or any other institution in the country. Immense credence that the judiciary has to its name, is manifestly visible in the Constitution of India. Be it Article 142[i] that vests with Supreme Court the power “to pass such decree or make such order as is necessary for doing complete justice”, be it Article 13 (2)[ii] read with Article 32[iii] and 226[iv] of the Indian Constitution that empowers the supreme court and high courts to invalidate all the laws that are in contravention with the Fundamental Rights, or be it the 13 bench judgement rendered in Keshwananda Bharati v. State of Kerala[v] that empowered the Judiciary to review laws passed by the legislature and also made this power of review, immune from any alterations by the Legislature. All these factors establish that the Judges and the judiciary are entrusted with vital constitutional and public functions, due to which the degree of moral rectitude associated with the judges is also extremely high.
However, the assumptions ingrained in the minds of the citizens, due to which they feel the Judges are replete with virtues and are immune from biases and political pressures, are fact-free. Such assumptions have been brutally debunked in various instances when Justices on the Collegium have made appointments based on nepotism when the collegium has made unfair transfers under political pressures when the judges have penned down politically motivated judgements and the most notably when these individuals on the bench have accepted and welcomed post-retirement appointments by the executive. The nomination of former CJI Ranjan Gogoi has been the latest addition to the list of these Justices.[vi]
As has been argued by many jurists and commentators, this appointment has threatened the very sanctity and efficacy of doctrine of separation of powers which finds reference in Article 50[vii] of the constitution and is indispensable for curbing the abuse of executive power, preserving the freedom of Judiciary and ensuring the efficient functioning of the three organs of the state.[viii] The fear of inefficiency resulting from the blurring demarcations between the executive and the Judiciary is only one side of the story.
But, what deems attention at this point when our Constitution has conferred on us, the right to life and liberty which entails dignified existence and not merely an animal existence[ix], is that how the citizenry views the judiciary and whether this appointment of J. Gogoi would blemish or embellish that viewpoint. It is also to be considered as to how such actions on the part of judges negatively affect individual rights, life and liberty.
Concerning the issue of the viewpoint held by the citizenry, as has been argued initially, a high degree of moral rectitude is expected out of judges. It has been pointed by J. Chandrachud in one of his lectures that irrespective of their personal background, judges and their judgements are trusted for being impartial because people generally view the judiciary as being a Bastian of justice and this perception leads to a transference of trust to all the members of the judiciary.[x]
However, immediate appointments of judges after they retire casts a shadow of doubt on the justness of the judgements rendered by them, irrespective of their merits as people presume these pre-retirement decisions to be politically coloured or aimed at securing favours from the executive. This happens because as per the judicially accepted test of bias which was laid down in the case of Rattanlal Sharma v. Managing Committee and others[xi], the presumption of bias is stronger in the case of the judiciary. The existence of actual bias is not necessary and the mere presumption of bias, which is founded on grounds that are not very improbable or unreasonable, is enough to presume a bias.
Apart from the stains on the sanctity of judiciary and the resulting loss of public trust, a further and a scarier problem can be that people who see the judiciary as a reliable adjudicator and custodian of their rights, may opt for extrajudicial means, which might not work on the principles that sit well with the constitutional ideals. Vesting adjudicatory powers with Khap panchayats that are known for not following principles of Equality[xii] and Secularism and do not hear cases or render decisions as per the due process which is prescribed in the constitution, is one instance of such public behaviour which stems from lack of trust in Judiciary. Treading upon the unchartered territory of mobocracy and inundating the law of the land and the judicial processes by lynching people on streets for being alleged kidnappers[xiii] or beef eaters[xiv] is another such instance. Thus, it can be concluded that such a situation where citizenry loses faith in the judiciary is extremely undesirable and can lead us to a state of utter lawlessness and instability which would threaten the life and liberty of individuals.
Concerning the issue of effect on the rights of individuals, Article 32 and 226 of the Constitution empower the Supreme Court and the High Courts to armour the Fundamental Rights of individuals. Likewise, As per the ruling in Sidheshwar Sahakari Sakhar Karkhana Ltd. V. Union of India[xv] the Judiciary is vested with the power to review the administrative decisions of the Government. All this indicates that judiciary plays a significant role in adjudicating disputes between the state and the individual which account for nearly 46% of the total litigations[xvi]. Thus, The only remedy available to an individual when they are wronged by an executive or an administrative action is the Judiciary. But when the Judiciary sheds it’s virtue of impartiality and becomes immune to Executive influence, the probability of reaching pro executive outcomes increases and the rights of individuals are detrimentally affected. In fact, which court can an individual, who is wronged by the Executive, approach apart from these pro-executive courts? This pro-executiveness of the judiciary and its impact on individual rights became quite apparent when Mr. Gogoi, the then CJI under the PIL powers, took over the process of National Register of Citizens and thereafter, the SC decided the deadlines, procedures and documents which were to be submitted for the NRC[xvii]. The question of the constitutionality of NRC is a separate issue, however, the very fact that the former CJI played an emphatic role in a purely administrative and executive action that had the potential to affect the substantive rights of individuals, speaks volumes about his pro executive stance. Another such instance of collusion of judiciary and executive was seen when J. Gogoi rejected Habeas Corpus petitions which were filed by a few politicians and students, before the Supreme Court after the Kashmir lockdown. The unfortunate fact is that he is not the only one to accept such a political appointment, other eminent justices like P. Sathasivam, J. Ranganath Mishra, J. AK Goel and so on have also been guilty of the same in the past[xviii]. This shows that the problem of post-retirement appointments is not an isolated one but is rather systematic in nature.
Due to this, the executive’s decision to make such appointments and the judge’s decision to accept such positions should be revisited by them. The drafting Chairman of the constituent assembly Dr BR Ambedkar was sure that the Judiciary will not have to adjudicate many disputes between the states and the citizens as he thought that the primary function of the judiciary was to resolve disputes between private parties only[xix]. This is why he rejected PK sen’s proposal to include a constitutional provision imposing an embargo on sitting and retired judges from holding offices under the Government of India or of a state. Ambedkar’s assumption has become archaic in current times when State is a litigant in 46% of cases and Judiciary hears and adjudicates conflicts between state and citizens for most of the time. The need to have a provision identical to the one proposed by Sen has arisen, more than ever before. Even if this idea seems too radical, there at least needs to be a cooling period of a few years, before a retired judge is offered some position by the executive.
All these measures are necessary for the trust and faith in the judiciary to revive, survive and thrive. They are also important to materialise Restatement of Values of Judicial Life[xx] which was adopted by the Supreme Court on 7th May 1997. This restatement encourages the members of the higher judiciary to conduct themselves in a way, such that the people’s faith in the impartiality of the judiciary is re-affirmed. This cannot happen unless the issue of post-retirement appointments is addressed jointly by the judiciary and the executive.
Anchal is a 2nd Year Student at NLSIU, Banglore & Jisha is a 1st Year Student at RGNUL, Patiala
[i] The Constitution of India, 1950, Art.142.
[ii] The Constitution of India, 1950, Art.13(2).
[iii] The Constitution of India, 1950, Art.32.
[iv] The Constitution of India, 1950, Art.226.
[v] Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[vi] Govt. of India, Ministry of Home Affairs, F. No. 15/2/2018-M & G (March 16, 2020).
[vii] The Constitution of India, 1950, Art.50.
[viii] Samanwaya Rautray, Kurian Joseph hits out at Ranjan Gogoi for taking Rajya Sabha route, THE ECONOMIC TIMES March 18, 2020.
[ix] Maneka Gandhi v. Union of India, AIR 1978, SCC 597
[x] Rangin Pallav Tripathi, Don’t judges need the trust of the people more than people need to trust judges, THE WIRE October 7, 2019.
[xi] Rattanlal Sharma v. Managing Committee and others, AIR 1993, SCC 2155
[xv] Sidheshwar Sahakari Sakhar karkhana Ltd. V. Union of India, AIR 1999, SCC 5866.
[xvi] Department of Justice, Active plan to reduce Government Litigation, 2017, 2.
[xvii] Gautam Bhatia, The troubling legacy of Chief Justice Ranjan Gogoi, THE WIRE March 16, 2019.
Available at- https://thewire.in/law/chief-justice-ranjan-gogoi-legacy
[xix] Arghya Sengupta, After the judges retire: time for a fresh look at sensitive judicial afternoons and evenings, May 8, 2019.
[xx] Revathi Krishnan, Supreme Court crisis: These are the 16 values of judicial life our judges swore to uphold, THE PRINT May 2, 2019.