Mainstream, VOL LIV No 48 New Delhi November 19, 2016
A Nascent Caste on the Horizon: the Judicial Dynasties
Monday 21 November 2016
by Kunal Ghosh
During the Emergency of 1975 to 1977, called by then Prime Minister Indira Gandhi, the Parliament passed laws for preventive detention of individuals and took the extreme step of suspending the Habeas Corpus. Even in 1962, during the days of the Chinese invasion in North-East India, Prime Minister Nehru’s government had promulgated an ordinance called the Defence of India Rules for preventive detention. But there was no legislation suspending Habeas Corpus. The 1975 law was challenged and a Bench of five seniormost judges heard the case. Justices A.N. Ray, M.H. Beg, P.N. Bhagwati and Y.V. Chandrachud delivered a majority ruling in favour of the tyrannical state. The only dissenting view was that of Justice H.R. Khanna.
It is often said that Mrs Gandhi curbed the powers of the judiciary severely. However, it appears that she did not have to do much; the judiciary surrendered its powers tamely. Justice Ray was already a CJ (that is, Chief Justice); the remaining three went on to become CJs. The seniormost, Justice H.R. Khanna, was denied promotion and the position, as punishment for his uprightness.
Reverse Swing of the Pendulum
Mrs Gandhi did believe in the ‘committed judiciary’ and favoured either ideologically aligned or genuflecting judges. At least she followed a legislative process under the Constitution in taking powers away from the judiciary. In contrast, what the highest echelon of the judiciary did in two landmark cases is utterly without precedence and totally against convention. That is why I call it the Reverse Swing. In the ‘S. P. Gupta Vs Union of India: Transfer of Judge’ case of 1981 and subsequently in the ‘Supreme Court Advocates-on-Record Association Vs Union of India’ case of 1993, the learned judges of the Supreme Court (abbreviated to SC hereafter) gave such verdicts that had the effect of taking away all powers from the executive (read the government) to appoint or transfer judges. They vested these powers in a Collegium System created by the SC itself. The Indian Constitution had given these powers to Parliament which was exercised by the executive appointed by the Parliament. In fact, it is the President who used to appoint the judges on advice from the Cabinet of the ruling government. Needless to say, the Collegium System finds no mention in the Constitution. One can argue that the said verdicts were against constitutional sanction. Also, this is unprecedented in the history of parliamentary democracy of the world. It is a mute question whether these verdicts, that amount to amendment of the Constitution, are constitutionally valid. Does the SC have powers to amend the Constitution? No, it does not. That power belongs only to the Parliament and the Legislative Assemblies in a complex web of rules. Jurists, lawyers and constitutional experts outside India expressed alarm. Indian law-makers remained more or less indifferent. No amendments of the Constitution, no legislation, just delivery of verdicts and the result is substantive alteration of the basic structure of the Constitution and disturbing the balance of powers between two organs of the state as envisaged by the Constitution.
In July 1998 the then President of India, K.R. Narayanan, under his constitutional powers, raised a question of law regarding the verdicts of the two cases and the Collegium System, but to no avail. The SC stuck to its position and re-affirmed the validity of the Collegium System. The two cases and the presidential reference together are known as the “Three judges’ cases” among the legal fraternity. In fact, in the second case the petitioner is not a judge and the third was not a case at all; and hence, the label is a misnomer.
It is true that the executive, the legislature and the judiciary are independent, equal and countervailing in a parliamentary democracy. But what is forgotten is that Parliament is the first among equals because it is elected by the people who are the sovereign. Our founding fathers gave the powers of appointing judges to the elected government. This is so in all the countries where some form of the parliamentary model is followed. Now as a result of the verdicts of the SC, there seem to be two poles of sovereignty—the people and the judiciary.
The Collegium System
Under the Collegium System a judge is appointed to the Supreme Court by the President of India on the recommendation of the collegium—a closed group of the Chief Justice of India, the four seniorhrost judges of the Court and the seniormost judge hailing from the High Court of a prospective appointee. The President, as advised by the Cabinet, has the option of rejecting a recommendation. The Collegium System and the strict Contempt-of-Court laws have given almost absolute powers to the judiciary. The result has been deepening of corruption and spreading of nepotism.
The National Judicial Appointments Commission (NJAC) was a body, proposed by the Narendra Modi-led NDA Government, which would have had the sole power to appoint and transfer judges. Firstly, the government had recognised that there had been undue political interference in judicial affairs in the past. So the NJAC was designed to insulate the judiciary from direct political interference. Secondly, tens of very eminent lawyers and retired judges were consulted in drafting the proposal.
The Commission was established by Parliament by amending the Constitution (Ninetyninth Amendment Act, 2014). Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by Parliament to regulate the functions of the NJAC. The NJAC Bill and the Constitutional Amendment Bill were ratified by 16 of the State legislatures in India, and subsequently received the assent of the President.
The twin legislations were challenged by the Supreme Court Advocates on Record Association and struck down as unconstitutional by a Constitution Bench of the SC by a majority decision, of four to one, in October 2015. On one side is ranged the wisdom of the entire elected body of representatives of the people (in Parliament and the Assemblies), eminent lawyers and ex-judges, and on the other side is the opinion of a handful of sitting judges of the SC.
The proposed NJAC included representatives of both the executive and the judiciary (it is not necessary to go into the details). Yet it was struck down and the arguments offered substantially meant that the elected bodies cannot be trusted. And, of course, the argument—the Basic Structure of the Constitution will be compromised—was repeated. Mistrust between the two organs of the state now stands institutionalised, a most unhealthy precedence. Also the ‘basic structure argument’ does not seem to be valid; if it were valid, then the Constitution was being violated from 1950 to 1993—an absurd proposition. Then the countries from which we borrowed parliamentary democracy are all violating the ‘basic structure’—another absurd proposition. The Finance Minister in the Modi Cabinet, Arun Jaitley, has rightly called the SC ruling a “tyranny of the unelected”.
Confrontation and impasse between two organs of the state have happened in other countries too. The Lower House in the Parliament of the UK is called the House of Commons or just ‘Commons’ whose members are directly elected by the people. The Upper House is called the House of Lords, which has a large number of hereditary peers who at one time used to enjoy considerable powers, both legislative and judicial. In 1909 the Liberal Party had formed the government. The Lords rejected the government’s budget. The Liberals then introduced a bill to end the powers of the Lords to reject any legislation approved by the Commons. That too could have been blocked by the Lords, but the Liberals threatened to fill the House of Lords by a large number of Liberal appointees. The Lords wisely backed off from the confrontation and the tyranny of the unelected ended.
A prominent feature of the Indian society is the caste system that stands on two pillars: (1) hereditary privilege and/or profession, and (2) the custom of endogamous marriage (within the community pursuant of the same profession). The first had appeared in the House of Lords. Initially the peerage, that is, the membership of the House of Lords, was passed down from father to son, although an eminent person could enter laterally as a new appointee. The Lords had legislative as well as judicial powers. A committee of legally qualified Lords, known as the Law Lords, was at one time the ultimate appellate authority on many matters. A Law Lord’s son had only to acquire a law degree and some experience, then on his father’s death he would automatically become a Lord and was eligible for the post of a Law Lord. In course of time the Commons took a series of legislative steps to curb the hereditary powers of the Lords. The key issues here are the automatic inheritance of powers and its consequences.
In India it is common for a lawyer’s son or a politician’s son to enter his father’s profession. Lawyers are often appointed as judges and strong connections to people in authority often clinch the deal. In this context, I like to draw attention to the growth of judicial dynasties. By a very short search lasting over a few days I have discovered two budding dynasties in the higher levels of the judiciary.
The present Chief Justice of the SC, Tirath S. Thakur, took over on December 2, 2015. His father, D.D. Thakur, was a well-known lawyer who later became a judge of the J&K High Court. D.D. Thakur was the main advocate of Sheikh Abdullah when he was facing arrest in the Nehru era. He later became a Finance Minister in the Sheikh Abdullah Government. He also served a term as the Assam Governor before returning to practice in the S C.
Tirath S. Thakur enrolled as a pleader in 1972 and joined his father’s chamber. He became an Additional Judge of the J&K High Court and within a month (a surprisingly short time!) was transferred to the Karnataka High Court as a judge. Did connections clinch the deal? We do not know. He was transferred to the Delhi High Court in 2004 and became the Acting Chief Justice in 2008 (Ref: The Times of India, November 5, 2015, Ahmedabad). Elevation to the SC followed later. The present Chief Justice of Allahabad High Court, Dhananjaya Chandrachud, is the son of Justice Y. V. Chandrachud, who had ruled in favour of the Indira Gandhi Government in the Habeas Corpus case during the Emergency and who later became the Chief Justice of the Supreme Court from 1978 to 1985.
I wonder how many such dynasties would be unearthed if an all-India search is instituted by a team of journalists. What I have discovered may be the tip of the proverbial iceberg. I like to conclude by saying that the growth of such dynasties within the judiciary is an unhealthy feature and it is likely to be encouraged by the present Collegium System for judicial appointments. The first characteristic necessary for the formation of a caste has already emerged. If the dynasties fuse into one another through marital links, a new caste would be born.
Since this article was written, Justice Dhananjaya Chandrachud has been transferred from the Allahabad High Court to the Supreme Court.
The author is a retired Professor and Head, Aerospace Engineering, Department, IIT, Kanpur.