PUCL Bulletin July 1981

Judiciary Under Executive Assault

The government's assault on the independence of the judiciary took a new turn with the non-confirmation of Justice S.N. Kumar and Justice O.N. Vohra of the Delhi High Court. A number of other additional judges all over the country have only been given short extensions. The sword of non-confirmation continues to hang over their heads.

The attacks by senior government functionaries on the Supreme Court, in and out of Parliament, have mounted. A former Law Minister has also threatened impeachment of certain judges. Law Minister Shiv Shankar Rao's circular on transfer of additional judges tends to rationalise punishment to certain inconvenient judges in the form of transfers.

In fact the executive assault on the judiciary began in 1973 with the superseding of three judges in the appointment of the Chief Justice of India.

"In appointing a person as Chief Justice, I think we have to take into consideration his basic outlook, his attitude to life, and his politics We, as a government, have a duty to take the philosophy and outlook of a judge into account in coming to the conclusion whether he should or should not lead the Supreme Court at this time. This is our own prerogative which the Constitution has entrusted to us." This was Mohan Kumaramangalam's defence of the superseding of three judges of the Supreme Court, Justice l. M. Shelet, Justice K.S. Hegde and Justice A.N. Grover by Justice A.N. Ray.

It was an executive assault on the independence of the judiciary. The government's decision-and its shameless defence of it-left no doubt that it wanted Justice A.N. Ray as the Chief Justice of India because he thought on lines approved by it.

The three superseded judges were a party to the majority opinion of the historic Kesvananda Bharti case which held that the Parliament's right to amend the Constitution did not include the right to amend, abrogate or destroy the basic structure of the Constitution. This judgement was delivered on the eve of superseeding of judges. Needless to say, Justice A.N. Ray agreed with the minority view which upheld Parliament's supremacy to amend the Constitution.

The role of the Indian Supreme Court vis-à-vis the executive can be dealt with in three stages. The fifties marked an era of subservience. It was during this period that the Supreme Court held twice in Sankari Parsad's case (1952) and in Sajjan Singh's case (1965) that the jurisdiction of Parliament to amend the Constitution was unlimited. It was again during this period that the Supreme Court held in A.K. Gopalan's case that a person could be deprived of his life and liberty by any procedure which was duly enacted, whether or not it was fair, just and reasonable.

Period of Assertion
The Golak Nath case in 1967 by a majority opinion of 5:4 saw the Supreme Court make an effort to assert itself. It heralded an era of assertion. The Golak Nath case reversed the earlier view of Sankari Parsad and Sajjan Singh cases and held that Parliament had no powers to amend the fundamental rights. It was also during this phase that the Supreme Court, in the Bank Nationalisation case, expressed its first doubts about the correctness of its own view in Gopalan 's case.

As the Supreme Court marched forward strengthening citizens' rights, the Kesvanand Bharti case marked an end of the this era. The Supreme Court altered its view of the non-amendability of the fundamental rights and held that the basic structure and the salient features of the Constitution could not be altered. It was at this stage that the Government decided to mount an assault on the Court.

The long-standing convention of seniority in the matter of appointing the Chief Justice was disturbed. The "Kumaramanglam thesis" revealed its ugly designs and the social philosophy of judges became a relevant factor in their appointments. With A.N. Ray as its Chief Justice, the Supreme Court entered the era of uncertainty.

The proclamation of Emergency on June 26, 1975 was an attempt to destroy Indian democracy. While a large section of the Indian judiciary decided to resist the onslaught on democratic institutions like the press and judiciary, a section of the Supreme Court surrendered. The unanimous verdict of nine High Courts relating to Habeas Corpus-that Article 21 is not the sole repository of life and liberty and that a detainee has a right of Habeas Corpus during the Emergency-was reversed by a 4:1 verdict of the Supreme Court. The High Courts displayed courage whether it was on the matter of a detainee's right of medical treatment or his interviews with his relatives, or the right of a lawyers' association to organise a meeting, or to stay a High Court Judge's arbitrary transfer. The Supreme Court, however, showed subservience.

In the Habeas Corpus case, Chief Justice Ray said, "There is no record of any life of an individual being taken away either in our country during Emergency or in England or America during the emergency in their countries. It can never be reasonably assumed that such a thing will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or people were otherwise murdered. Such instances are intended to produce a kind of terror and horror and are abortive in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country".

Justice Beg said in his judgement. "I do not think that it is either responsible advocacy or the performance of any patriotic or public duty to suggest that powers of detention are being misused in the current emergency".

Justice Chandrachud expressed his optimism by writing that "counsel after counsel expressed the fear that during the Emergency, the executive may whip and strip and starve the detainee and if this be one's judgement even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright, diamond hard hope that such things will never come to pass".

Justice Bhagwati agreed with the majority and said, "The apprehensions and fears voiced on behalf of the detainees may not altogether be ruled out. It is possible that when vast powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they may sometimes be abused and innocent persons may be consigned to temporary detentions. But merely because a power may sometimes be abused is no ground for denying the existence of the power. All power is likely to be abused I have always leaned in favour of upholding personal liberty, for I believe it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have laid down their lives at it's altar in order to secure it, protect it and preserve it. But I do not think that it would be right for me to allow my love for personal liberty to cloud my vision or to persuade me to place on relevant provision of the Constitution a construction which its language cannot reasonably bear".

Justice Khanna's dissenting judgement in favour of the citizen, however, acquired a historic importance in India. He said, "Law of preventive detention without trial is an anathema to all those who believe in personal liberty. Such a law makes deep inroads into basic human freedoms which we cherish and which occupy prime position among the higher values of life. It is, therefore, not surprising that those who have an abiding faith in the rule and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for longer periods without trial".

Justice Khanna and other judges of various high courts who displayed courage were punished for their independent views. Fourteen judges of high courts who were a party to various judgements against the government were transferred from one high court to another without their consent. A list of 52 inconvenient judges was prepared. Proposals were mooted for the establishment of a superior council over the judges.

Upon the retirement of Justice A.N. Ray, the next senior most judge, Justice H.R. Khanna, was denied his right to become the Chief Justice of India. Justice R.N. Aggarwal and Justice U.R. Lalit, who were additional judges of the Delhi and Bombay High Courts respectively, were not confirmed.

With the overthrow of the Emergency in 1977, pressures on the judiciary eased. The Emergency regime had introduced the inglorious 42nd amendment to the Constitution. The new Parliament repealed the 42nd amendment except two of its provisions which could not be revoked because the Janata Party did not have the requisite two-third majority in the Rajya Sabha.

One of these provisions pertained to Article 3 1(C) which gave Directive Principles supremacy over Fundamental Rights. Any law enacted in pursuance of Directive Principles of State Policy could not be challenged on the ground that it violated Fundamental Rights. The other provision was a rider to Article 368 which enlarged the jurisdiction of Parliament and prevented courts from striking down the validity of a Constitutional amendment.

In 1980, the Supreme Court struck down these two amendments in the Minerva Mills case.

Period of Guilt
The post-Emergency Supreme Court suffered from a guilt complex about its Emergency role. This was evident in the important suits by state governments, challenging the Janata Governments decision to dismiss them. Upholding the right of the Centre to dismiss state governments, Justice Bhagwati said, "Never in the history of this country has such a clear and unequivocal verdict been given by the people, never a more massive vote of no-confidence in the ruling party. When there is such a crushing defeat suffered by the ruling party and the people have expressed themselves categorically against its policies, it is symptomatic of a complete alienation between the government and the people".

In the same judgement, Justice Fazal Ali described the Emergency: "It is clear that grave emergency was clamped in the whole country. That civil liberties were withdrawn to a great extent. That important fundamental rights of the people were suspended. That strict censorship on the Press was placed. And that judicial powers were crippled to a large extent".

The Janata era encouraged the Supreme Court to lay down certain landmark judgements in support of citizens' rights as in Rammana Shetty's case, followed later by Ajay Hesia and Som Prakash Rekhi's case.

The direct implication of these judgements was that various authorities created by or under an act of Parliament which were to be financed and administratively controlled by the State had the obligations attached to the State enjoined to them. They were expected to act fairly and without arbitrariness. These agencies, for example, could not pick and choose citizens arbitrarily in matters of giving contracts or distributing largess.

In the landmark judgement of Maneka Gandhi's case, the Supreme Court held that "the procedure established by law" by which deprivation of a citizen's liberty was possible must be a just, fair and reasonable process. Handcuffing and bar-fetters were held to be barbarous and inhuman and were quashed in Sunil Batra's (1st) case and Prem Shankar Shukla's case.

The prison justice concept led the Supreme Court to deliver judgements releasing undertriais in Hussanara Khatoon's case. The concept of Habeas Corpus was expanded in Sunil Batra's (2nd) case. The right of personal dignity as a part of liberty was introduced in Frances Mullain's case. The Supreme Court showed an exemplary sense of justice in the case relating to the Bhagalpur blindings. It expanded the concept of locus standi in the matter pertaining to liberty and public interest litigation in Sardanand Vs. Arunachal's case, the Sindri Scrap deal case and the Ratlam Municipality case. The Court had became an activist court in safeguarding citizens' rights.

Assault Remounted
Once the Congress (I) Government was back in power in 1980, the assault on the judiciary was remounted. Broadly, it can be described under four headings:

  1. Statements in and out of Parliament denigrating the judiciary including the filing of a privilege motion against the Chief Justice of India.
  2. The Law Minister's circulars attempting to transfer judges.
  3. The non-confirmation of additional judges.
  4. Efforts to appoint committed political activists as judges.

The Chief Justice of India, while hearing a matter listed before him, observed, "...Those who address the nation in Parliament do so with an equal sense of responsibility Just because they are in Parliament, they can say anything they like because they are immune.. .they are supposed to be enlivening the debates of the House by saying that all that judges do is to sit back in their chairs".

One the basis of these remarks, a Congress (I) member tabled a motion for breach of privilege of the House against the Chief Justice. Even though Article 121 of the Constitution clearly states that no discussion shall take place in Parliament with respect to the conduct of any judge of Supreme Court or High Court except on a motion of impeachment praying for the removal of the judge, the Speaker did not reject the motion outright. He reserved his opinion on the admissibility of the motion for a week before rejecting it. During this period, the Congress (I) members did everything possible to humiliate the judges.

In fact, Mr Kamal Nath, a Congress (I) M.P. in the Lok Sabha, said, "I would like to say that various pronouncements of the Supreme Court and the high courts in the recent past are nothing but trespassing into the executive function and into the legislative functions... Vanity somehow seems to have clouded the vision of the judiciary. It seems that the judiciary has a score to settle with our executive and that its main task is not to uphold justice but to uphold it's own supremacy over the executive. Until now all criticism has been that the executive and the politicians have been tampering with the judiciary but now I think that a stage has come when the judiciary is tampering with the executive and is trying to usurp the powers of the executive".


Mode of Appointment
Let us at this stage examine what the mode of appointment of judges is and how the government intends to use the very institution of an additional judge and the weapon of transfers to subserve justice.

Article 50 of the Constitution provides that "the State shall take steps to separate the judiciary from the executive in the public services of the State". This is one of the Directive Principles of State Policy which is "fundamental in the governance of the country".

The selection and initial appointment of judges is one of the crucial stages at which the executive branch of the government can exercise its power to fashion a judiciary which would be pliant and submissive. To this, a new dimension has been added by the practice of appointment of "additional judges" to the High Courts and their confirmation, a dimension not warranted by the Constitution.
Under the Constitution, the qualifications laid down for a person to be selected to hold judicial office are of a general nature. To be appointed a judge of the Supreme Court, a person must either be a High Court Judge of five years' standing, an advocate practising in the High Court for at least ten years, or a "distinguished jurist".

To be appointed to the High Court, a person must have held judicial office in India for 10 years, or must be an advocate of 10 years standing, or a distinguished jurist. A judge of the Supreme Court is appointed by the President, after consultation with the Chief Justice of India (which is a mandatory requirement), or with such judges of the Supreme Court or High Courts as the President may deem necessary (Article 124).

A High Court Judge is appointed by the President after consultation with the Chief Justice of India, the Governor and the Chief Justice of the High Court (Article 217).

It is clear that these provisions could be interpreted as conferring a very wide discretionary power on the President in the matter of selecting judges. And, in fact and in law, the President here means the government of the day. The words "after consultation with" would technically, and in the absence of healthy principles of convention, mean that the Chief Justice of India must be consulted, but his opinion need not be respected.

It is obvious that such an interpretation would set at naught any principle of separation of the executive and the judiciary and, consequently, judicial independence, which was in minds of the members of the Constituent Assembly. As a matter of fact, the Constituent Assembly had ruled out a specific amendment providing for a complete separation of the Judiciary from the executive in the chapter dealing with judicial appointments as it was already covered by Article 50 of the Directive Principles.

It is also obvious that the notion of a "committed judge", mooted in 1973, which came to be known as the Kumaramangalam Thesis, would undermine judicial independence to a very large extent. The question then would be what social or economic philosophy the judge should be committed to. If the executive is to be the final authority on judicial appointments, it would in practice mean the philosophy of the party in power. Such notions as commitment to the "teleological goals of the Constitution" would be extremely vague criteria, leaving a large room for manoeuvre.

The goal of securing separation of the executive and the judiciary could be achieved by ensuring that the merit of a prospective appointee is assessed by persons holding judicial office themselves, namely, the Chief Justice of India and of the high courts, and other senior judges of the Supreme Court and the high courts.

An All India Convention of Lawyers held in New Delhi in August 1973, at the time of the controversial superseding of three judges of the Supreme Court, had suggested that appointments should be made on the recommendation of a committee consisting of the senior most judges of the Supreme Court or the High Court, as the case may be (five judges in the case of the Supreme Court and three judges in the case of the High Court) and two leading members of the Bar. The Government, if it had any objections, would discuss the matter with the committee. But the final recommendation of the committee would prevail.

Another way in which the independence of the judiciary is sought to be encroached upon is by misuse of the provisions of Article 224 of the Constitution. Under it, appointment of addition judges can be made for reasons of any temporary increase in the business of the High Court or for arrears of work therein. It is obvious from a joint reading of Articles 217 and 224 of the Constitution that the permanent strength of the High Court should be what is warranted by the workload of litigation at a given time, and that the additional judges should be appointed only for reasons of temporary increase of work.

However, in practice, these provisions are perverted and misused by keeping a major portion of posts in the High Court as temporary posts for additional judges. A glaring example is that of the Delhi High Court where there are 15 permanent posts and 12 posts of additional judges. In practice this means that the tenure of nearly half the judges of the High Court is temporary and at the mercy of the executive.

Additional judges can be appointed for a maximum period of two years and by giving short term re-appointments or extensions. The tenure of the judge can be made extremely insecure, as he is to depend upon the will of the government of the day to grant or refuse him a further extension. The method of functioning is calculated to cause great harm to judicial independence and can create disquieting doubts in the minds of the litigating public.

Threats to the judicial independence have been dealt with in detail elsewhere in this article, but the method of appointment of additional judges is one of the most potent weapons in the hands of the executive. An additional judge who is not to the liking of the executive, can therefore be conveniently dropped without following the procedure of impeachment, which has been laid down in the Constitution.

Paradoxically, the subordinate judiciary is better ensured against executive encroachment through Constitutional provisions and judicial interpretation. District judges, who are selected directly from the Bar, can be appointed only on the recommendation of the High Court under Article 233(2). District judges appointed by promotion are elevated to the position by the Governor in consultation with the High Court.

Under Article 225, appointments of persons other than district judges are to be made by the Governor in accordance with rules and after consultation with the State Public Service Commission and the High Court. This is followed in practice so that a certain standard of merit and impartiality is maintained. District judges are chosen from among such persons. Further, since the district and subordinate judges are appointed and transferred and controlled by the High Court, they are free from executive control.

On March 18, 1981, the Union Minister of Law and Justice, Mr P. Shiv Shankar Rao, addressed a circular to the governors and chief ministers of all states requesting them to elicit from additional judges their agreement to be transferred to any high court. He asked them to:

"(a) obtain from all additional judges working in the High Court of your state their consent to be appointed as permanent judges in any high court in the country. They could in addition be requested to name three high courts, in order of preference, to which they would prefer to be appointed as permanent judges; and (b) obtain from persons, who have already been or may in future be proposed by you for initial appointment, their consent to be appointed to any other high court in the country along with a similar preference for three high courts."

The reasons mentioned in the circular are that such a policy of transfer would help national integration, combat narrow and parochial tendencies like caste, kinship and other local considerations. But the circular is an expression of no-confidence in the judiciary. It is a device to punish the inconvenient judges.

Justice Sankal Chand Sheth of the Gujarat High Court, filed a writ petition challenging the order of transfer as ultra vires and invalid.'Article 222(1) of the Constitution requires that "the President may, after consultation with the Chief Justice of India, transfer a judge from one high court to any other high court". The principal questions raised before the full bench of the Gujarat High Court were that the transfer of a judge could be effected only with his consent and that the powers of the President are not unfettered for transferring a judge.

Another important point raised was whether the transfer of a judge was a fresh appointment and would therefore require his consent. The Gujarat High Court held by a majority of 2 : 1 that the transfer was not a fresh appointment and consent of the judge was not required. However, all the three judges quashed the order of Justice Sheth's transfer since it was not based on consultation of the Chief Justice of India with the President.

The Supreme Court heard the appeal of the Union of India and by a 3 : 2 majority also decided that the transfer was not a fresh appointment and consent of the judge was not required. However, on the question of consultation with the Chief Justice of India, it held that the government should put all the relevant materials about a judge's transfer at the disposal of the Chief Justice. It is the Chief Justice's duty to consider the matter and examine the injury, if any, that may be done to the judge concerned.

A complete and full consultation involving the health of a judge, the availability of medical facilities, the occupation of the judge's wife, the education of his children would be taken into consideration at the time of such "consultation". In Justice Sheth's case, the government agreed to transfer him back to the Gujarat High Court.

It is clear that the intention of the Law Minister's letter is to circumvent the law as it stands in Sheth's case. The decision by the Union Government not to grant extensions to the two additional judges of the Delhi High Court, Justice S.N. Kumar and Justice O.N. Vohra, indicates that the Union Government is guided by extra-judicial considerations in the matter of appointment of high court judges.

Why Independant Judiciary?
Independence of the judiciary is not an idle wish or a slogan. It was a felt necessity when the Constitution of India was being framed by the Constituent Assembly. Most of the members of the Constituent Assembly had actively taken part in the freedom struggle against the British rule and on more occasions than one suffered at the hands of the British colonial judiciary.

Mahatma Gandhi on many occasions had expressed his disenchantment with British justice even when, as a staunch loyalist of the British crown, he waged his non-violent struggle in South Africa for the betterment of conditions of the indentured labour.

The Bombay High Court building bears Lokmanaya Tilak's word, engraved in stone, that the process of justice meted out to him was a great disappointment and that he would have better appealed to the higher justice of the divine powers.

It is not as if the yearning for an independent judiciary was the by-product of the freedom struggle. Its need was felt when the Indian National Congress was in its formative stages. In 1895, some politicians drafted a document called the Constitution of India Bill in which provision was made for a Supreme Court manned by Indian judges. The aim was obviously a judiciary which was free from British colonial rule. Of course, this Bill was not presented before the British Parliament but it did inspire the Indian National Congress.

In 1925, a committee under the chairmanship of Pandit Moti Lal Nehru was formed which drafted the Dominion Bill. Even this Bill contained a provision for a Supreme Court free from British influence because it was the experience of the freedom fighters that the courts in British India always tainted their judgements with political considerations.

In this context, it may be worthwhile to recall the trial of Nand Kumar during the days of Warren Hastings, the first British Governor General of India. The Chief Justice of the Supreme Court in Calcutta, who tried Nand Kumar, was one Mr. Impey. It is now established that the charges against Nand Kumar were all fictitious. The witnesses who appeared against him were obviously tools of the East India Company in general and of Warren Hastings in particular. Nand Kumar was sentenced to be hanged. Impey thought it wise to follow the British precedent, where it was not customary to execute persons charged-with offences of embezzlement. Such death sentences were always commuted to life.

However, the Private Secretary to Warren Hastings met Impey and informed him that the Governor-General would be annoyed if Nand Kumar were left alive. Nand Kumar was therefore hanged because the executive government so desired it and not because it was the law.

Laws made during the British rule, restricting the jurisdiction of the courts and curtailing the powers of judges, were dubbed as black laws. One such example was what are commonly known as the Simon Acts. These were amendments to the Criminal Procedure Code, providing for a summary trial.

If there is a committed judiciary, there would be no necessity for the executive to proclaim internal or external emergency. Even worse results would follow when hand-picked judges, committed to what the executive desires, would deliver judgement not unlike those by the inquisition courts of Medieval Ages.

Time and again governments have resorted to this method. Prime Minister Vorster of South Africa packed the Supreme Court in his country to ensure that the challenge to the segregation laws was defeated. Vorster removed "inconvenient" judges from the Bench of the Supreme Court. The Indian Government under Mrs. Gandhi was the first to condemn the South African Supreme Court manned by convenient judges. It is, therefore, surprising that the same government approves at home what they condemned abroad.

Justice O.N. Vohra has been punished because he sentenced Sanjay Gandhi and one other in the "Kissa Kursi Ka" case.

Justice S.N. Kumar did not agree with the policy of transferring additional judges. How a transfer would improve the efficiency of an additional judge or reduce the arrears pending in the courts is comprehensible.

What the Government is attempting to do by bringing committed judges is rolling back the wheels of history to a position from where the founding fathers of the Constitution salvaged the nation by presenting to it a judiciary which was the guarantor not only of the Constitutional and statutory rights but also of the fundamental rights of every citizen.

Police Control of Magistrates in Tamil Nadu
When Karunanidhi was in power, he introduced a system of deputing officers from the Secretariat to taluk and sub-magistrates' posts to act as magistrates for 6 months as a training period. In the revenue department also, the deputy tehsildars are supposed to function as magistrates, (ex-officio judicial magistrates) for 6 months and they are supposed to equip themselves with knowledge of the legal system. Since these officers are part of the bureaucracy, they have the tendency of not antagonising the police. This is still prevalent and it has considerably affected the independence of the judiciary.

In Madras, most decisions regarding bail, detention, treatment meted out to undertrials cannot be taken without the sanction of the police. In fact this process has been institutionalised in a regular review meeting where the mandates are given by senior police officials-virtual guidelines on how the magistrates should act! There are about 24 magistrates in the city, about 24 courts and about 150 police stations and one Police Commissioner. For these meetings the Chief Metropolitan Magistrate communicates to the rest of the magistrates when to attend the meeting.


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