Is Independence of the Judiciary is
genuflexion?
"Solmon's throne was supported
by lions on both sides; let them be lions, but yet lions under the throne;
being circumspect that they do not check or oppose any points of
sovereignty."
These are the Biblical apologue in the old Testament
referred in the very famous Advocates on record Association case popularly
known as ‘II Judge’s case’ while
comparing itself to the then scenario and answering the vital questions which are of great
constitutional significance affecting the Indian Judicial system that are applicable even to the present
scenario. Let me reproduce the questions formulated therein….
(1) Whether the present day 'Solomon's throne (symbolizing
the majesty of our justice system) is fully supported by the 'Lion's
(symbolizing the legislature and executive) on both sides?
(2) Whether the 'Lions' are still under the 'throne'?
(3) Whether, the 'Lions' are circumspected from checking or
opposing any of the points of sovereignty of the judiciary (i.e. judicial
sovereignty)?
(4) Whether it is for
the 'Lions' to pronounce the name of 'Solomon' and his successor to occupy the
throne?
(5) Whether 'Solomon' has any right of proposing any
celebrated structural reform to his 'House' (symbolizing the judicial
structure) or is it for the 'Lions' to make such proposal to 'Solomon's House'
without reference to Solomon?
(6) Is it for the 'Lions' to make any alteration to the
structure of the Imperial State of 'Solomon's House' and propose sweeping
reforms whether Constitution and composition of a 'Kingdom of Solomon' - even
without reference to Solomon or even inexcusably ignoring any suggestion of
Solomon?
(7) Whether under the present scheme and procedure
prescribed and followed, 'Solomon' is made to sit on the chair of handicapped
sub-silentio instead of his own 'throne'?
These questions are relevant even
today.While the appointments and transfers of Hon’ble Judges to the Supreme
Court and the High Courts are said to be delayed by the Government and thereby
interference in the Judiciary, See the
present situation of Madras High Court.
Already Notification of the Transfer of the Acting
Chief Justice T.Raja has been issued, and though more than a month has lapsed,
there is no symptom of his Lordships moving to the other High Court. Sources say that as there is only less than
six months time for his retirement, a request has been from his side to be
retained here itself. The absence of
specific guidelines in the enacted provisions of Constitution appears to be
deliberate, since the power is vested in high constitutional functionaries and
it was expected of them to develop requisite norms by convention in actual
working It is true that there is custom
of considering the request of the Hon’be Judges who are due for retirement, to
post them in their State, at least one year prior to their retirement.
In The famous II Judges case i.e
Supreme Court Advocates-on-Record Association v. Union of India [(1993) 4 SCC 441], a nine-Judge Bench laid
down guidelines and norms for the appointment and transfer of Judges which are
said to be being rigidly followed in the matter of appointments of High Court
and Supreme Court Judges and transfer of High Court Judges .It was held that
“Care must be taken to ensure that no
Chief Justice is transferred without simultaneous appointment of his
successor-in-office, and ordinarily the acting arrangement should not exceed
one month, the maximum period needed usually for the movement of the Chief
Justice to their new positions. This is essential for proper functioning of the
High Courts, and to avoid rendering headless any High Court for a significant
period which adversely affects the functioning of the judiciary of that State.
(3) The continuing practice of
having Acting Chief Justice for long periods; transferring permanent Chief
Justices and replacing them with out of turn Acting Chief Justices for long
periods; appointing more than one Chief Justice from the same High Court
resulting in frustration of the legitimate expectation of Judges of some other
High Court in their turn, except in an extraordinary situation, must be
deprecated and avoided. Application of the policy has been quite often
selective and it is essential to make it uniform to prevent any injustice.
It may be desirable to transfer in
advance the seniormost judge due for appointment as Chief Justice to the High
Court where he is likely to be appointed Chief Justice, to enable him to take
over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint
himself with the new High Court. This would ensure a smooth transition without
any gap in filling the office of Chief Justice. In transfer of puisne Judges,
parity in proportion of transferred Judges must be maintained between the High
Courts, as far as possible.”
Against
this guidelines, which is said to be scrupulously followed by the Hon’ble
Sureme Court, though Hon’ble Justice Muralidhar , Chief Justice of Orissa High
Court has been recommended to be transferred to Madras High Court in October 2022 itself. No news about the’ warrant’ to be issued by the President of IndiaHon’ble
Justice T.Raja is functioning as Acting Chief Justice for more than a month. On the retirement of the then Chief Justice
Munishwarnath Bandari, The President has appointed Justice M. Duraiswamy,
senior-most Judge of the Madras High Court as Acting Chief Justice with effect
from September 13, and on his
retirement, Hon’ble Justice T.Raja w.e.f.
September 22. .
The corriders of High Court says
that the State Government does not like the appointment of Justice Muralidhar
from Orissa High Cort and hence the said
transfer is getting delayed.…And that too Madras High Court, which is A
Chartered High Court exists without a Permanent Chief Justice, which means that
it does not exists at all!!
Sir
Winston Churchill emphasising the independence of judiciary once said The Judge has not only to do justice between
man and man. He also - and this is one of the most important functions
considered incomprehensible in some large parts of the world has to do justice
between the citizens and the State. He has to ensure that the administration
conforms with the law, and to adjudicate upon the legality of the exercise by
the executive of its powers.
In practice, whenever the Council of
Ministers both at the Central and State level, as the case may be, plays a
major role in its self-acclaimed absolute supremacy in selecting and appointing
the Judges, paying no attention to the opinion of the CJI, they may desire to
appoint only those who share their policy performances or show affiliation to
their political philosophy or exhbibit affinity to their ideologies. This
motivated selection to the judiciary
certainty undermines public confidence in the rule of law and the independence
of judiciary. Justice Krishna Iyer, "Independence of the Judiciary is not
genuflexion, nor is it opposition of Government".
In S.P. Gupta case, Bhagwati, J says :Judges should be stern stuff and
tough fire, unbending before power, economic or political, and they must uphold
the core principle of the rule of law which says "Be you ever so high, the
law is above you." This is the principle of independence of the
judiciary which is vital for the establishment of real participatory democracy,
maintenance of the rule of law as a dynamic concept and delivery of social
justice to the vulnerable sections of the community.
And
that is the reason the Chief Justices of High Court of a State is being appointed from outside the State as a policy adopted so
that to get rid of its suffocation
caused by the excessive dominance of the executive. Otherwise the idealogy
behind Article 50 and the cherished
concept of independence of judiciary untouched by the executive will only be
forbidden fruits or a myth rather than a reality.
It is
the time to point out the another important glaring scenario of Madras High
Court, which was never faced by it during all along its journey which needs immediate .attention//.
At present, Apart from Acting Chief Justice, Thiru Justice T.Raja, there are 53 sitting High
Court Judges. Leave alone, Hon'ble Mr.
Justice Paresh Upadhyay, who is the only Justice from outside Tamilnadu, the entire sitting Lordships belong to the
Tamilnadu State itself, which is a glaring pitiable scenario in the history of the Chartered High Court of
Madras.
Why so? Is it not a happy moment
that not only the State to be ruled by Tamils but the entire High Court is full
of Tamil Judges?
No.
not at all. the cardinal
principle “Justice not only be done. But also seems to be done” . In order to have fairness in the
administration of justice, usually while
maintaining the Judges strength of a High Court, the ratio of a Justice of other
state compared to three or five Justices of the same State is mainitained for a High Court . this is done for all practicable purposes,
bringing the transperancy in the administration of justice. For example, When a matter is heard by a
Single Judge of High Court and judgement is passed, the Appeal is heard by the
Division Bench of the High Court, comprising usually of atleast one Lordship of Other State. Even
in the administrative side also, as the first Seven Lordships will be in the
Committee headed by the Chief Justice atleast one Justice belonging to the other state will be
there. These factors are utmost
necessary not only in the public
interest also for better administration of justice.
If that is missing, what will
happen?
Today the Full Court has been
convened, headed by the Acting Chief Justice where the Designation of “Senior
Counsels” to be awarded to nearly 80 Advocates.
Every one knows that this ‘Senior Counsel’Designation by the High Court
to an Advocate is some what equivalent to the “ High Court Justice:” as he
enjoys a pre rogatory right over the other Advocates, can wear a gown alike the
Lorships and so on…. The Selection of those Advocates from all over the State
by the High Court Judges belonging to the same State, except a only Justice who
is about to retire on coming 14th ………..
will it not bring a casting cloud
on the same?
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