Shanti Bhushan, former law minister and veteran advocate, on the SC judges' crisis
Pankaj Kumar | January 24, 2018 | New Delhi
Four senior judges of the supreme court have publicly made serious allegations against the chief justice of India. Will it have wider impact on judicial discipline?
I think so. I think the CJI will have to take note of it and rectify the mistakes he was making.
Will it not set a wrong precedent? What if judges in high courts or lower courts come out like this against their chief justices or chief judicial magistrate?
The supreme court sits collectively. It is a small court with only a few judges. Such a situation can’t arise in a high court. A high court is not the final authority. Every judgment of a high court can go in appeal to the SC. But if the SC makes motivated decisions, then it is destructive to the law.
Now the whole matter started with the medical college case. A retired judge of a high court has been arrested in that case.
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When that petition was filed, [a probe] has to be carried out very objectively and honestly by a special investigation team appointed by the SC and monitored by the SC. When justice Chelameswar referred this petition to five senior-most judges including the CJI, then it was countermanded. Why? The government knows what evidence has been collected by the CBI. The government, if it wants to, should direct the CBI to make the evidence public. After all, we are living in a republic and people are supreme. Why should it be kept under wraps? Unless the government wants to keep this case as a pressure tactic against the
CJI to make him do what it wants. If the SC itself becomes corrupt, then what is left to the judiciary and what is left to the constitution?
But should the four judges have gone to the press? Couldn’t there have been a better way?
There was no other, better way. This was the best possible way. What else…Can you think of any another way? In fact, it is the pressure of public opinion which alone is likely to force the CJI to make the corrections.
Some critics like justice R S Sodhi have demanded the impeachment of the four judges. What do you have to say to that?
Has he read the constitution? What is their misconduct to lead to an impeachment? Normally, it would not be a good practice to go against the CJI in public. But what to do? If they went to the CJI first and when he did not redress it [their grievance], should they allow the democracy to be endangered? By this step, they have saved the country because the CJI will have to talk to them and find out a possible solution satisfactory to them.
Corruption in the higher judiciary is an open secret. What reforms do you suggest to ensure the integrity of the judiciary?
Who are we to bring in reforms? We can only give our views. The National Judicial Appointment Commission (NJAC) should be constituted. It should have a full organisational secretariat which must go out all over the country and pick out the best available talent… one can be appointed as judge even at the age of 35. [Sir Shah Muhammad] Sulaiman, who was a very eminent judge, was appointed at 34 [on the bench of the Allahabad high court, in 1918] and [Justice Syed] Mahmood at the age of 32 [in the Allahabd high court, in 1882]. If such young people with great talent are appointed they will be judges for 25 to 30 years. So fewer vacancies are to be filled and fewer people are to be chosen. So go out and get the best talent. The country does not have a dearth of talent.
The judiciary has insulated itself from the legislature as well as the executive, and it insisted on its collegium system for the selection of judges. Is it time for change?
I am also of the view that what harm would have been caused if the law minister is sitting with four judges in selection process of judges? The four judges would not bow down to whatever the law minister is saying. Under the constitution also, the government has some role [in the selection of judges]. It is by the collegium judgment that the role has been almost eliminated. During my time as law minister, I never interfered in the selection of judges, though theoretically, the law minister had a role to play. I preferred judges of the SC and high courts to go on with the process. In our times, best judges were appointed. Yes, the collegium system is not right but at least it has the merit of depoliticising appointments. So some other body [should] takes the power from the collegium, but [that should be] not any other political body. They can make a joint committee from the Rajya Sabha and Lok Sabha which can scrutinise the appointments but appointments must be out of the domain of politicians.
Do you believe that acceptance of demands of four judges by the CJI will resolve the crisis?
For the time being, it will solve the problem. Because there is one issue they have raised: why the cases are handpicked and sent to some junior judges. In fact, the bar association has passed the resolution that all the important matters, particularly PILs, should be listed before the five seniormost judges.
A study showed that in previous decades, some 15 very critical cases were decided by junior judges. Why is there so much hue-and-cry now if some important cases are allocated to junior judges?
So long as they are not handpicked by the CJI, they may be senior or junior. But handpicking a particular junior judge casts a serious suspicion. This has never happened before.
Should there be a codified rule about the roster and allocation of cases?
The constitution doesn’t say [how] benches will be constituted and cases be allocated by the CJI, and no law says that. Therefore, my own view is that at the most the full court can sit and decide to let the five senior judges sit and decide the allocation of cases. Then the public will be satisfied.
In other words, you say that the CJI should not be the master of the roster.
Because neither the constitution nor any law says that this power belongs to the CJI. So let it be vested [with the full court], they can frame a rule in no time that the constitution of benches and allocation of cases will be under the authority of a collegium of five senior-most judges. After all, in the matter of the appointment of judges, the constitution talks of the CJI alone, but it was read to mean that the CJI is not sitting alone but the CJI, along with senior judges, will exercise that power. So what is the difficulty in following this in the constitution of benches and allocation of cases?
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