Judiciary: Reform or recuse

Justice Yashwant Varma was appointed on October 13, 2014. He was transferred to the Delhi High Court on October 11, 2021. He is Senior Judge No. 2 in the Delhi High Court. It is also learnt that his name is under consideration for elevation to the Apex Court. On March 14, 2024, at midnight, at 11:30 pm, a fire broke out in his outhouse. The honourable Judge, with his family, was in Madhya Pradesh. His mother and daughter were residing in Delhi. Shortly thereafter, the personal secretary of the Hon’ble judge called the fire force and informed them that the fire had broken out at No.30 Tilak Road. The firefighters, along with two vehicles, entered the premises and were able to control the fire. The officers on the spot are speaking: Gandhi ko aag laga hai. It refers to the heaps of notes with the image of the Father of the Nation being burned. The phrase Gandhi ko aag laga hai indicates that the principles of Gandhi are also being burned along with those notes. Alas, it is the sacred place where the holy cow resides.

Collegium Intervention

It took at least three days for the honourable Supreme Court to obtain an immediate report, and it uploaded images of the half-burnt notes. A simple question arises: if an offence has taken place, is it not necessary for the police to register an FIR, conduct the mahazar, etc.? It is not against the judge; it is against the accidental burning of notes. Yes, the police have failed.

The Hon’ble Supreme Court collegium has decided to recommend the transfer of Justice Varma to his parent court, where his seniority is at number 9. After obtaining the report from the Chief Justice of the High Court, the Chief Justice of the Supreme Court has ordered not to allot any judicial work to the Hon’ble Judge. However, due to his seniority, he remains part of the Delhi High Courts collegium and is a member of six important committees. Later, the CJI also withheld the participation of the Hon’ble Judge in the administrative meetings.

Consequences

The Bar Association of Allahabad High Court immediately called for a general body meeting and decided to oppose the transfer on the grounds that the Allahabad High Court is not a dustbin. Later, the Allahabad High Court decided to withdraw from work indefinitely. Allahabad High Court Bar Association has decided to keep its decision under suspension from April 1, 2025 till the in-house enquiry is completed.

An online Zoom meeting took place with nearly 20 High Court Bar Associations, and it was decided to oppose corruption in the judiciary. Six members from various High Court Bar Associations, including Allahabad, Bengaluru, and others, met with the CJI and requested a thorough inquiry to stop this transfer.

An in-house inquiry was also ordered by the CJI, consisting of the Chief Justices of Punjab & Haryana High Court and CJ of Himachal Pradesh, along with Judge No. 2 of the Karnataka High Court,  Justice Anu Shivaraman.

Constitutional Provisions

Article 124 and 217 are the Articles that provide for the appointment of Supreme Court judges and High Court judges. They also provide for the removal of judges under Article 124(4) by impeachment proceedings in both houses of Parliament.

The text of the Constitution that provides for the appointment of judges to the constitutional courts is deceptively simple. It provides for the honourable President to appoint them in consultation with other judges. In the Constituent Assembly, one member suggested that the part reading “in consultation with the CJI” should be read as “in concurrence with the CJI.” Dr. Ambedkar, Chairman of the Drafting Committee, rejected this vehemently, stating that after all, the Chief Justice of India was also a human being with all the prejudices, human feelings, and sentiments that common people have. The supreme power to give concurrence would only provide a veto over the President, which the nation was not prepared to agree with. The Constitution makers decided to vest the power of appointment only with the executive, subject to consultation.

The officers on the spot are speaking: Gandhi ko aag laga hai. It refers to the heaps of notes with the image of the Father of the Nation being burned. The phrase Gandhi ko aag laga hai indicates that the principles of Gandhi are also being burned along with those notes

Until 1975, consultation was effective, and the Indian judiciary produced extraordinary personalities like Justice VV Bose, Justice Patanjali Shastri, Justice K. Subba Rao, Justice Gajendragadkar, and so on. After 1975, however, the experience showed a different trend. The executive, even without consultation, and only by information, began appointing judges to the High Courts. This led to criticism both in the press and legal circles.

It is too late in the day to dispute the position that justice must be administered through the courts, and such administration would relate to social, economic, and political aspects of justice. The judiciary, therefore, becomes the most prominent and outstanding wing of the Constitutional system for fulfilling the mandate of the Constitution.

When the discussion arose in Parliament while incorporating Article 124, Dr. Ambedkar said, “Sir, there is no doubt that the House in general has agreed that the independence of the judiciary from the executive should be made as clear and definite as we could make it by law.” After quoting TT Krishnamachari, he said, “We do not want to create an imperium in imperio, meaning sovereignty within sovereignty,” and further emphasised that the separation of powers between the three organs is one of the most important features of the Constitution. Though there is a very thin line of distinction, it has been recognised in Bhim Singh’s case (2010), 5 SCC 538, Constitutional Bench. One may point out here that the Constitution does not stop overlapping; there is no specific provision to this effect. You could say with certainty that from 1950-1975, ‘consultation’, ‘concurrence’ , and ‘consent’ all were in tandem, and appointments were recommended/approved by the CJI. With the approval of the PM’s office, the President’s office issued the warrants. However, after the Emergency, the executive sought to control the judiciary, and appointments were made just by informing the Chief Justice.

It may be recalled that Justice Jitendra Veer Gupta (CJ of Punjab & Haryana High Court) and some other Judges resigned because of the approach of the executive. Non-confirmation of one of the additional judges of the Delhi High Court in the S.P. Gupta’s case was referred to a larger bench. The seven-judge bench of the Supreme Court, in 1981, held that consultation need not be understood as concurrence or consent. However, in 1993, a nine-judge bench of the Supreme Court held that the appointment of higher judiciary must be integrated, participatory, and consultative. The primacy of the judiciary should be accepted, and thus, the decision in the 1981 case was overruled.

On the reference made by the Central Government in 1998, the Supreme Court held that to serve successive generations, the Constitution need not be interpreted like a statute. The Constitution is a working instrument, and it was held that the collegium system was the way to preserve the independence of the judiciary. (This author respectfully disagrees with the opinion expressed in the third judges’ case).

In 2015, both Houses of Parliament unanimously adopted a constitutional amendment to Articles 124, 217, and 222, which were amended, and the 99th Amendment to the Constitution was passed by both Houses of Parliament and 16 States. In 2016, the five judges held that

a) There was no need to refer this matter to a larger bench, as enough time had already passed.
b) The independence of the judiciary is a basic structure of the Constitution, and
c) Already, nine judges had held that consultation means consent, and judicial primacy must be respected. Therefore, the act of Parliament was nullified.

d) If the opinion of the collegium defers the executive has got the right to accept other view also thereby the primacy of the CJ is lost. This dichotomy still persists in the collegium system.

After-effects of NJAC

It has been noted that the ‘uncle syndrome’ was practiced by the judiciary. The best of the bar was neglected for one reason or another. Even the NJAC case has highlighted certain deficiencies in the collegium system and suggested forming a Memorandum of Procedure (MOP) with all stakeholders. Despite 10 years passing, this has yet to be concluded. Social diversity is not reflected in the appointment of the higher judiciary.

In-house Enquiry

It is difficult to understand what mechanism an in-house enquiry could use to investigate this matter. Hence, the burnt notes were removed from the sea. The learned judge has denied their existence. In the absence of a capable investigating agency, it is difficult for an in-house enquiry to come to any conclusion. The only way out is to register an FIR and allow a central agency to investigate, supervised by a three-member committee. Lessons from the past have revealed that it is practically difficult to prove allegations and even more difficult to initiate impeachment. So, what is the way out?

Suggestions

i) Establishment of an independent judicial commission (Revisit NJAC).
ii) Implementation of a code of judicial conduct by enacting a statutory code of judicial ethics that is enforceable.
iii) Annual declaration of movable and immovable assets, including those of spouses and dependent family members.
iv) Mandatory post-retirement cooling-off period.
v) Greater diversity and representation in the judiciary.
vi) Time-bound enquiry system for complaints in working of systems
vii) Establishment of a judicial conduct ombudsman office from district level to the Apex Court.
viii) Transparent and reasoned transfer of judges.

May I conclude: “Preserving judicial independence is one of the most challenging tasks for nascent democratic states. Compromising with the independence of the judiciary comes at a heavy cost for the nation.” The independence of the judiciary is not only critical at the higher level but also at the trial court level. One should not forget that no constitutional court is subordinate to another. Therefore, revisit NJAC.