Constitutional crisis in the making

Independence Day 2014 was remarkable in a number of ways. The Prime Minister made a speech from the ramparts of the Red Fort without the standard security shield guarding him, a speech that was termed a "command performance" by commentators. What however has gone unnoticed is another speech made that very day. This was by the Chief Justice of India (CJI) at an Independence Day function organised by the Supreme Court Bar Association (SCBA) in New Delhi.

The context could not be clearer. The National Judicial Appointments Commission (NJAC) Bill, 2014, and The Constitution (One Hundred and Twenty- First Amendment) Bill, 2014 were introduced in the Lok Sabha on August 11, 2014. The former provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC), and the latter proposed to amend the provisions of the Constitution related to the appointment of Supreme Court and High Court judges, and the transfer of High Court judges.

Both these were passed by the Lok Sabha on August 13, 2014, and by the Rajya Sabha on August 14, 2014.

It was reported in the media that the Constitution Amendment Bill "seeks to lay down the architecture for setting up of the National Judicial Appointments Commission (NJAC) through another bill, aimed at overturning the two-decade-old collegium system of appointing judges in the Supreme Court and High Courts. After the bill becomes law, the government will have a say in the appointment of Supreme Court and high court judges after 21 years."It was these two pieces of important legislation that the CJI commented on in his speech at the SCBA. The CJI was reported to have said, "I am sure that the people in judiciary, executive and parliament shall have mutual respect for each other and allow them to work unhindered within their own sphere without being influenced by external forces." One of the leading English language dailies reported that in his address, the Chief Justice sought to show the mirror to the government on judicial appointment in subordinate judiciary, large number of cases getting acquitted for the lack of poor investigation, weak evidence and improper prosecution. He cited figures to support each of his contentions.

What is so special about the CJI's speech?

Judiciary has a special and exalted place in society, of which the Judiciary itself is fully aware. That is why the Judiciary itself has found it appropriate to articulate what has been called Values of Judicial Life. In the Conference of Chief Justices held on 3rd and 4th December, 1999 in the Supreme Court premises, a "Restatement of Values of Judicial Life" (Code of Conduct) was unanimously adopted. One of the paragraphs from the preamble to the Statement is worth reproducing in full.

"NOW THEREFORE, on a consideration of the views of the High Courts on the draft, the restatement of the pre-existing and universally accepted norms, guidelines and conventions called the 'RESTATEMENT OF VALUES OF JUDICIAL LIFE' to serve as a guide to be observed by Judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice, as redrafted, has been considered in the Full Court Meeting of the Supreme Court of India on May 7, 1997 and has been ADOPTED for due observance."

The complete Code of Conduct consists of 16 points, two of which, the 8th and the 9th, are of relevance here. These say "(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination", and "(9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media."

There can be no doubt whatsoever that the Honourable Chief Justice of India is fully aware of the provisions of the Code of Conduct. The question therefore arises what made him go public with his concerns "on political matters or on matters that are pending or are likely to arise for judicial determination."

The matter is most certainly "political" as the entire political establishment of the country seems unanimous in supporting the legislation. That the matter is "likely to arise for judicial determination" has already been proved by petitions filed in the Supreme Court on August 21, 2014, one of which has been "settled by" (legalese for "with the approval of") none other than the redoubtable Fali Nariman who wrote as recently as August 06: "In this situation, what would be the right thing to do? I believe that before embarking on the new experiment of a broad-based National Judicial Commission, even one loaded with a majority of sitting judges as members, it is imperative that there should be meaningful dialogue between the executive and the collectivity of all the judges of the Supreme Court (represented by its chief justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is the need of the hour, because we cannot risk another judicial decision. The executive, the judges and the lawyers must resolve to avoid, at all cost, a fourth judges case." The fact that Fali Nariman who wanted "to avoid, at all cost, a fourth judges case", has himself started one, highlights the seriousness of the issue. The Supreme Court has decided not to delve into the issue for now, saying "(T)he petitions are premature. It is open for the petitioners to approach the court at a later stage on the same ground." It is the same seriousness that possibly made the CJI speak publically on the issue. The appointment of a retired CJI as Governor of a state has added another twist to this discomforting tale. Comparisons are indeed odious but they can also be instructive, at least, at times. It may be worth recalling that the Chief Justice of the Supreme Court of a neighbouring country was on the streets, leading public demonstrations, not too long ago. Admittedly that neighbour is not comparable with us but we do share common history except for the last 67 years which is not too long a time in the history of nations. The simple point is taking public positions by Chief Justices of Supreme Courts are indicative of extremely complex and often difficult situations. And those are the situations that result in constitutional crises. To quote Fali Nariman again, it is therefore "imperative that there should be meaningful dialogue between the executive and the collectivity of all the judges of the Supreme Court (represented by its chief justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is the need of the hour."

Let us hope better sense prevails, all around, for the good of the nation.