Appointment of Chief Justice

Top Government leaders are embarrassed by the continuing speculation in the press in regard to the choice of India’s next Chief Justice. The appointment of a Chief Justice is undoubtedly a matter of great public importance. No one can reasonably take exception to a discussion in regard to the best manner of re-establishing healthy convention which would both uphold and strengthen the independence of the judiciary. However, objection is taken to the manner in which certain names have been bandied about and erroneous impressions created. One report would have us believe as though a decision has been taken to have an outsider as the new Chief Justice. Some others have sought to convey the impression that the new Chief Justice will be from within the Supreme Court itself and that the choice has already fallen on Mr. Justice Chandrachud in his capacity as the senior-most puisne judge.
NOdecision has been taken so far. A couple of Janata leaders did try to broach the issue at the recent meeting of the party’s Working Committee in Bangalore. However, the reference was casual and in the nature of loud thinking. This happened when there was a brief, unexpected pause in the deliberations and the Committee was constrained to wait for copies of the final draft of the proposed poll manifesto entitled: Call to the Nation. Significantly, Mr. Morarji Desai, Mr. Charan Singh, Mr. Jagjivan Ram maintained judicious reticence. One irrepressible Union Minister alone chipped in briefly. There was thus no question of any “dominant opinion” at the meeting that those who had opposed the citizens and favoured the State in the famous Habeas Corpus judgement should not be considered for the office of Chief Justice. Nor was there any “unanimous” assertion that the possibility of inducting an outsider be examined under Article 124 (3) which empowers the President to appoint “a distinguished jurist” as a judge of the Supreme Court.
Likewise, the issue has not been considered so far by the Cabinet or any of its Committees. Some senior ministers have, no doubt, informally exchanged views on the subject with their close associates in the Janata Party. Expectedly, due notice has been taken of the views expressed by eminent jurists, the Supreme Court Bar Association and leading publicmen. But here, too, the discussion has been in the nature of loud thinking. In fact, senior partymen like Mr. Shyam Nandan Mishra, Deputy Leader of the Janata Party in Parliament, favour a debate on the subject at the party level. Unfortunately, this has not been possible despite the fact he and like-minded Janatamen consider the issue to be vital enough for an emergent inter-session meeting of the Parliamentary party or at least of its executive. Everyone is now involved in the poll battle and there is little chance of a timely get-together. The present Chief Justice is due to retire on February 22.
Opinion among top Janata leaders is divided. A powerful section is one with Mr. M.C. Chagla and others in Bombay and New Delhi. They question the desirability of appointing Mr. Justice Chandrachud as the next Chief Justice on the principle of seniority in view of his judgement in the Habeas Corpus case. How can anyone, they ask, who had sided with the State and, in effect, reduced the courts to non-courts be elevated to India’s highest judicial office. Mr. Jayaprakash Narayan and the New York Times are aggressively quoted time and again. JP, it is recalled, went on record saying that the “the Habeas Corpus judgement has put out the last flickering candle of individual freedom.” The New York Times while asking India to raise a monument to Mr. Justice H.R. Khanna for his courageous stand observed that the four judges would be remembered “only in infamy.”
Two leaders recalled at the Bangalore meeting of the Janata Party’s Working Committee now, prior to the Supreme Court Judgement, as many as nine High Courts, including Allahabad, Bombay and Delhi, and 39 High Court judges had held that the habeas corpus petitions were maintainable. These judges, it was pointed out, had boldly upheld the rule of law when there was no prospect of the Emergency ever being lifted. Many of them had even suffered great indignities and hardships for their stand. Those inclined to make an in-depth study could also have pertinently quoted what Jawaharlal Nehru said on the quality and character required of Supreme Court judges while speaking in the Constituent Assembly on May 29, 1949. He said: “It is important that these judges should be not only first rate but should be acknowledged to be first rate in the country and of the highest integrity, if necessary, people who can stand up against the executive Government and whoever may come in their way.”
A dominant section among the Janata leaders (in the Cabinet and outside) concede that there is much force in what Mr. Chagla and others have to say. However, they feel that the appointment of the Chief Justice must be insulated from official predilections and healthy conventions re-established. They, therefore, prefer to go along with the Supreme Court Bar Association and its resolution adopted by 150 votes to 56 on January 23. The resolution, moved by the former Attorney General, Mr. C.K. Dapthary, and seconded by the former Union Law Minister, Mr. A.K. Sen, expressed the view that “it would be detrimental to the principles of democracy and to the maintenance of independence of the judiciary if the well settled convention of appointing the senior-most judge as the Chief Justice of India is not restored.” Interestingly, this view is also supported by leading Congressmen, including former Ministers.
These Janata leaders, moreover, emphasis that every care must be taken to ensure that nothing is done which ultimately harms the very cause sought to be upheld. A judge, according to them, must be judged by his “total personality” and not by any single judgement delivered by him. To go by one judgement alone would mean striking a blow in favour of a committed judiciary and following Mrs. Gandhi’s ignominious precedent. “Judges”, said one Janata leader, “must be encouraged to function without fear or favour. Let us not strike terror.” These leaders also draw attention to the Doctrine of the Political Question which has evolved over the years in the United States. Under the doctrine, political questions are to be eschewed for two good reasons. An expedient judgement, it is said, damages the principle. A principled judgement, on the other hand, damages the court. Thus, according to these leaders, to expect the Supreme Court to save democracy in a head-on confrontation with an all-powerful executive is to ask for the moon.
The office of the Chief Justice is of crucial importance in upholding the independence of the judiciary and, what is more, in ensuring fair play and justice. There is no gainsaying the fact that the Chief Justice is only the first among equals. True also, that he and other judges have the same right insofar as the work of the Supreme Court is concerned. But there is one vital difference. The Chief Justice as the head enjoys the sole prerogative of forming benches and distributing work among colleagues. Veterans among top legal luminaries point out that this “extra function” of the Chief Justice is crucial. A Chief Justice could always constitute a bench in a manner so as to load the dice in favour of a particular view. The Chief Justice, after all, knows the views of his colleagues in most cases. One veteran legal luminary told me: “I recall a Supreme Court judge once livid with anger for being kept out of a bench formed to hear an important matter. But then he added: “I knew the Chief Justice would keep me out. My views do not suit his.”
Quiet efforts, therefore, continue to resolve the dilemma and find an agreed solution. Among other things, the appointment of an “outsider” is being pressed hard as the only way out of the impasse. A few names have been advocated, including those of Mr. Nani Palkhivala and Dr. Nagendra Singh, Acting President of the World Court. Both have the required stature. But there are certain difficulties in regard to the two proposals, apart from their own inclinations and the question of advisability in the larger national interest. Dr. Nagendra Singh would, for instance, be required to retire next year if appointed Chief Justice on attaining the age of 65. There is no age limit for World Court judges and his nine-year term ends in 1982. (Pakistan’s Mohd. Zafrullah Khan continued as a judge of the World Court for two terms until he was 80). What is more, Dr. Nagendra Singh’s forte is international law. Incidentally, a World Court judge gets a tax-free salary of $50,000 per year besides perks – and a pension of $ 25,000 on retirement.
Many agree that an ideal solution would be to find a constitutional way to appoint Mr. Justice H.R. Khanna as the Chief Justice and to give one of India’s greatest judges his rightful due. This could be done by amending the Constitution to raise the retirement age of Supreme Court judges to 70 years, as has been demanded for some time. An acting Chief Justice could be appointed for the time being. But there are practical difficulties in amending the Constitution and the choice before the Government is strictly limited — between elevating Mr. Justice Chandrachud and appointing an outsider. Happily the Union Law Minister, Mr. Shanti Bhushan, is reportedly acting in accordance with Article 124 of the Constitution in letter and in spirit. He is believed to have consulted all Supreme Court judges and more than half the Chief Justices of High Courts on the issue — and is expected to complete the process soon. Let us hope a consensus will emerge in the best national interest. —-INFA