Time Has Come to Judge the Judges

Sandhya Jain

It is a measure of the new openness in our public life that outgoing Chief Justice of India, Mr. S.H. Kapadia, was subjected to a pointed critique of his tenure in office. Citizens who have for long looked at the judiciary as a bulwark against the corruption and cussed indifference of governmental authorities have experienced a sense of dejection during the tenures of some past Chief Justices, and it may be worthwhile to examine what has possibly gone awry.

Justice Kapadia, who presided over the apex court for an impressive 28 months, was widely perceived as pro-government and is possibly the only Chief Justice for whom the Prime Minister hosted a dinner. He is likely to be best remembered for public comments on matters under political and/or judicial scrutiny. At the International Academic Conference 2012 on Sept. 22, 2012, he startled the nation by endorsing the government’s policy on issues like foreign direct investment in supermarkets and aviation sector economic reforms which could avert “doomsday” by encouraging investment and fostering jobs growth.

He obliquely derided the Comptroller and Auditor-General’s report on loss in coal blocks allocation, saying “loss is a matter of fact, whereas profit or gain is a matter of opinion.” He further suggested that India align its tax, corporate and commercial laws with models suggested by the United Nations and the Organisation for Economic Cooperation and Development.

Eminent jurists feel the remarks set an improper precedent. Former Chief Justice of India J.S. Verma and senior advocate Rajeev Dhawan said the attack on the CAG was avoidable at a time when the CAG cases were going on. Moreover, Mr. Kapadia’s Vodafone judgment – that the existing Income Tax Act does not permit government to tax the firm for its overseas purchase of Hutchinson Essar’s Indian telecom operations – was presaged by an article and speech he had delivered. But he still sat on the bench.

Jurists point out that the former CJI failed to sort out the registry and adopt a uniform policy. He constituted benches by selection rather than seniority, hence many good senior judges were left out. Then, he was inaccessible to brother judges and the Bar, so much so that he did not meet even the Chief Justice of the Madras High Court who had come to invite him for the court’s 150 years’ celebration. Worse, he confirmed as high court judges persons considered inappropriate for the august offices.

Under Mr. Kapadia’s captaincy, the Supreme Court delivered only 69 judgments, most of which were written by brother judges, according to the court’s official website. He himself tackled only company and income tax matters; no civil, criminal or service matters were posted before him after he became chief.

Under Justice Kapadia, the Supreme Court resisted scrutiny of the judiciary under the RTI Act. He also failed to constitute the Constitutional Bench on the Supreme Court’s three long pending writs/appeals against verdicts of the Central Information Commission (CIC) for two long years since the Division Bench of Apex Court directed the Supreme Court registry to place the matter before him on Nov. 26, 2010. Overall, pendency statistics (55,018 cases when he took charge) increased almost 16 per cent under his watch.

Major judgments for which he will be appreciated include striking down the appointment of Central Vigilance Commissioner P.V. Thomas, the decree to abolish the Haj subsidy over ten years, and dampening the surge of public interest litigants with the message that PIL is not the answer to every social or economic ill.

But his judgment upholding the constitutional validity of the Right to Education Act and its applicability to private institutions on the ground of “inclusivity” will remain problematic because of the decision to exclude unaided minority institutions from its ambit. The court said:“Right to live covers access to education. But unaffordability defeats that access. It defeats the state’s endeavour to provide free and compulsory education for all children of the specified age.” The judgment failed to address the issue of the State passing the burden of its responsibility on to the shoulders of middle class parents already crushed by the cost of education and spiralling prices.

The last important case handled by Justice Kapadia’s court concerned the Presidential Reference on whether auction was the only way to allocate natural resources, as suggested in the February 2012 verdict by Justices A.K. Ganguly and G.S. Singhvi in the 2G spectrum case. The five-judge bench said “no” and returned policy and decision making back to the government.

But even brother judges were perturbed by the decision to recommend a sitting judge, Justice Swatanter Kumar, for the post of chairperson of the National Green Tribunal. Earlier in April, Justice Dalveer Bhandari, another sitting judge of the apex court, became India’s nominee for the post of Judge of the International Court of Justice, and was elected for a nine year term.

This, coupled with a recent judgment that retired judges be appointed in the Central Information Commission by changing the law, has resulted in an outcry against the Supreme Court’s virtual usurpation of the right to appoint judges (and handle their post-retirement sinecures), a practice that does not exist anywhere in the world.

Media investigations show that out of the 21 judges who retired from the Supreme Court since January 2008, 18 have joined various commissions and tribunals. This has triggered a demand for a two-year cooling-off period after retirement to ensure judicial integrity; otherwise job hunting judges would be open to undue influence. The only exceptions may be mandatory posts such as chairperson of the National Human Rights Commission.

In the best interests of the judiciary, and public confidence in the institution, the government should expedite constitution of a National Judicial Commission to oversee appointments of judges to higher courts. It could comprise retired Supreme Court judges, the Prime Minister, Leader of the Opposition, sitting Chief Justice of India, president of the Supreme Court Bar Council, and Chief Vigilance Commissioner. Lobbying by High Court judges for elevation to the Supreme Court could be curbed by fixing their retirement age at 65 years, thus bringing it at par with that of Supreme Court judges.

For justice to be done, and seen to be done, the impartiality and incorruptibility of the judiciary must be restored as an urgent national imperative.

(The author is

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