“No social justice in the appointment of judges to the higher judiciary”

Justice K. Chandru, former judge of the Madras HC, on the declining standards in the higher courts.

Justice K. Chandru. | Photo Credit: The Hindu Archives

Fundamental to protecting the rule of law in any functioning democracy is a free and fair judiciary. In a nation riddled with divisions of caste, religion, gender and wealth, an independent judiciary alone guarantees citizens the rights enshrined in the Constitution. Besides infrastructural issues and colonial-era laws, political and ideological influences seem to be eating away at judicial independence today. Against this backdrop, Frontline spoke to Justice K. Chandru, former judge of the Madras High Court. With more than 96,000 verdicts to his credit, Justice Chandru began life as a rebel and student leader before joining law college in 1973. Elevated to the Bench in 2006, Justice Chandru was famous for his fierce criticism of the establishment, and he does not mince words on questions about the current scenario. Edited excerpts:

Soon after India adopted the Constitution, its architect Dr B.R. Ambedkar was asked at a press conference whether the Constitution could be suborned or upended or neutralised. His candid answer was, of course, it can be; simply stop adhering to its basic tenets. In the light of several recent judgements in higher courts, how does one understand the Indian judiciary’s tilt towards the executive?

If you ask legal pundits how India gained Independence, they will say in one sentence that it was because of the India Independence Act passed by the House of Commons in the UK. One cannot be surprised by such an answer. That is how we have understood the adoption of the Constitution of independent India. We did not take a break from the past, but treated it as if it was a continuing course of action. Therefore, the birth of our Constitution was not for a new republic.

In the initial years, the judges appointed to the top court wanted to continue in their conservative mode and there was hardly anyone who was an activist in the freedom movement. Law and legal affairs were kept in a separate chamber to make it appear distant from political affairs. The Constitution, however, is a political document and any judgment of the top court will have political overtones. In the process, the higher judiciary in India was not a creation of the political set-up, and the test applied was purely of seniority and achievements in the legal field.

This resulted in the higher judiciary working in a manner that was either contrary to the interests of the republic or, at times, only to protect the executive and the legislature so that no harm is done to the political rule. For the first 25 years, there was only the monolithic rule of the Congress party, which was slowly reduced to the rule of a coterie, which discarded the revolutionary fervour that ended colonial rule. Therefore, the functioning of the higher judiciary was not on a straight line, but on a zigzag path.

The appointment system of judges did not work well, and the political leadership, except for appointing their own law officers, did not look into the same until the late 1960s, when a serious discussion started taking place in political circles regarding the role of the judiciary and its impact on socio-economic issues. It is only when the Bank Nationalisation Act and the Abolition of Privy Purses were negatived that the two constitutional amendments were thought of to remove the basis of the decisions made by the Supreme Court.

But the legal profession, which was well organised and which was also self-centred and with less of the spirit of the freedom movement and nation-building, started a huge campaign by which the judiciary was encouraged to attempt to insulate itself from any kind of objective assessment of its role. They slowly expanded their tentacles to get the power of appointment to themselves, completely in contrast to the constitutional framework. This further made the appointment process career-oriented, without any outlook on the role of the state in building a nation with jurisprudence against poverty.

At times there may have been one or two sparklers in the judiciary like Justice V.R. Krishna Iyer, Justice O. Chinnappa Reddy, Justice K. Ramaswamy, and so on. As Justice Krishna Iyer once commented, “There is one Supreme Court in Delhi, but within that there are 34 Supreme Courts.” Since the executive led by the political leadership did not enunciate any clear policies to lead the nation, the decisions of the courts at various times also were not cogent, and it looked like there were contradictions in the stand of the three organs of the state.

In essence, though, they played a mutually complementary role with few exceptions. The court never became any third chamber except for the appointment process and the striking down of the constitutional amendment providing for the National Judicial Appointments Commission (NJAC). However, the present trend seems to be to not decide any major issues and to maintain status quo over such issues that give a greater leeway to the executive.

‘Political vendetta’

The Supreme Court, in some recent judgments, appears to be veering into troubling territory. For example, in the Zakia Ehsan Jafri and Gujarat riots SIT case and in the Himanshu Kumar vs State of Chhattisgarh case, the court not only chastised legitimate petitioners but went so far as to advocate penal action against them. Teesta Setalvad was subsequently arrested and is still in jail. How do you respond to this direction taken by the Supreme Court?

The latest trend of reverse action against those who make complaints is nothing but a new vendetta exhibited by the judiciary, which is unheard of and never expected from a judicial standard. Even though in cases of a frivolous nature the court has advocated the imposition of heavy costs so as to be a deterrent, never in its history has it asked the political executive to pursue criminal action against such litigants. The Gujarat massacre had international ramifications and even found a place in the report of the American Congress Committee on religious tolerance all over the world.

The case put forward by Teesta Setalvad before the court two decades ago was endorsed by several independent tribunal reports, including one approved by a committee headed by Justice Krishna Iyer. The case cannot be labelled as frivolous or as irresponsible. But suddenly, without notice to the concerned party, to order an action that is undertaken overnight by the Gujarat government with the arrest of a social activist is clearly pre-planned and an act of political vendetta. After hiding everything from the public on sensitive matters (sealed cover jurisprudence), the hot pursuit of political opponents and their advisers has become a new dispensation of justice.

Dismissing a case filed by Himanshu Kumar (centre) alleging extra-judicial killings by security forces in Chhattisgarh, the court noted that the government/CBI could take “appropriate steps” against the petitioners. | Photo Credit: KRISHNAN VV

On ED’s powers to arrest and attach property

In the Vijay Madanlal Choudhury case, the top court upheld the Enforcement Directorate’s powers relating to arrest, attachment of property, and search and seizure under the amended Prevention of Money Laundering Act. This has raised apprehensions about the status of personal and civil liberties and the spectre of political vendetta. Do you think some of the most precious constitutional safeguards of Indian citizens are at stake?

After the Indian Penal Code was implemented, even the colonial government thought of a procedural safeguard in the form of the Criminal Procedure Code of 1898 so that certain amount of procedural safeguards are guaranteed for the accused. The Indian Evidence Act of 1872 also injuncted the courts from relying upon any statement given to the police by an accused as legal evidence. When the Constitution of India was enacted, it guaranteed protection of life and personal liberty, except according to procedure established by law.

The successive anti-terrorism laws include the latest amendment to the Unlawful Activities Prevention Act (UAPA) and the notorious Prevention of Money Laundering Act, 2002, whose constitutionality has recently been upheld by the Supreme Court. While delinking the actions of the Enforcement Directorate from the purview of procedural codes, the Supreme Court has come out with a startling proposition that the ED Information Report is not an FIR and hence need not be furnished and also that the ED staff is not akin to police, thereby completely giving a go-by to minimum safeguards provided under criminal law against any arrest and detention.

The result is that a major opposition party leader has been summoned to appear in their office every second day. Is it for political shaming of a leader or for unravelling the truth? In order to justify their newfound jurisprudence, they have labelled money laundering as worse than a terrorism offence. Whatever the nature of offence, any pre-trial or post-trial proceedings must have minimum human rights standards in the history of criminal jurisprudence. This was the worst decision and such deprivation of human rights would not have been conceived of even by Parliament. This is only an indication that the higher courts have stopped being a watchdog of human rights standards and the guarantees enshrined in the Constitution.

Deterioration of standards

There is a perceived inconsistency in Indian jurisprudence, with seemingly different interpretations of law in the lower courts, High Courts and the Supreme Court. It often seems like three systems are at work, with upper courts often reversing the decisions of lower courts. You have referred to some of these anomalies in your 2021 book Listen to my Case. The courts are also seen to exhibit all the weaknesses of society, including casteism, gender and communal bias, and insensitivity to economic inequality. Is this making the institution of the judiciary infructuous?

The process of selection of judges to the higher judiciary has evaded any public scrutiny, which has resulted in deterioration of standards in the higher judiciary. We have judges on the bench who have not even delivered a single decision in their tenure. It is because the present process of selection allows recruitment of advocates who have not argued a single case before the higher courts. As someone said rightly, it has become an old boys’ club where a nod of two existing members is enough to get into the club. However much they may justify the collegium system of appointment as preserving the “independence of the judiciary”, that is the last thing that has happened.

The orientation for being a member of the higher judiciary is totally lacking and the vision of constitutional justice is slowly getting blurred. It is not enough to take an oath on the assumption of office that they will uphold the Constitution; something more is required and that is to see whether a judge aspirant has the correct aptitude and constitutional vision to hold the post. On the other hand, we find an alarming increase in members of the Sangh Parivar being accommodated in disproportionate ratio to the strength of their political base. The very reason why the BJP gave up a second attempt to resurrect the NJAC is because they feel satisfied with the present collegium system of appointments, by which they can easily push their candidates disregarding any public criticism.

There also seems to be no social justice in the appointment of judges to the higher judiciary. Justice J.B. Pardiwala, who openly criticised the system of reservation in his judgment, and who later withdrew his own remarks when attempts to impeach him were in progress, has been chosen to be a member of the Supreme Court despite there being seniors to him on the bench. The additional bonus was that he will become the Chief Justice of India at a later point of time. This is how there is not only an erosion of norms and fair play in the appointment but an open packing of the judiciary so that the country will take a path that suits the current ruling dispensation.

Pending cases

Recently, Chief Justice of India N.V. Ramana frowned upon the practice of senior lawyers making mentions about other cases during court hearings and refused to entertain such requests any more. Do judges indulge senior advocates, particularly those representing the executive? Is the Supreme Court increasingly becoming inaccessible as a court of appeal to the ordinary litigant with modest means? What are the correctives in this context?

From time to time we have seen some Chief Justices of India denying “mentioning” by senior advocates, which dictate is hardly ever continued by their successors. Similarly, the present attempt to deny senior advocates crowding the first court for making a mention will not last long, as the seniors virtually rule the roost. It is not as if mentioning is done without pecuniary advantage to the seniors. Advance hearing in a few cases and making the coffers of the seniors fill up will not solve the basic problem.

Many serious cases involving deeper constitutional applications are still awaiting hearing despite tall promises by the CJI. The J&K bifurcation, illegal detention of Kashmiris, the Citizenship (Amendment) Act, and several such cases are pending. Even the non-grant of bail to the 13 intellectuals booked under UAPA in the notorious Bhima Koregaon case and the non-filing of charges against them are awaiting a decision by the highest court of the land. Besides non-attending to important cases, there are also problems of bias on grounds of gender, caste and religion plaguing the higher judiciary. Apart from this, there is also a huge backlog of 72,000 cases to be cleared by the Supreme Court at the moment. There is no single point for correction. The least could be to have a relook at the system of recruitment and to manage the affairs of the highest courts.

On bench fixing

The Master of the Roster issue, which cropped up in 2018 in the much-publicised press conference against the then Chief Justice of India Dipak Mishra, was perhaps the first open admission that all is not well in the higher judiciary. There has since been the bench-fixing allegation (over the assigning of a PIL on the untimely death of Judge B.H. Loya to a junior judge). Is ‘collective decision-making’ by senior judges on vital issues the way to eliminate such doubts?

I have labelled this power as a magic wand in the hands of the Chief Justices of High Courts and the Supreme Court, which can determine the outcome of any decision. In my biography, released at the beginning of this year, I have devoted one whole chapter to how the master of roll power can destroy the decision-making process of any court. The open press conference of the four judges on this issue was only an eye-opener and became a storm in a teacup after Ranjan Gogoi continued on the same path after becoming CJI.

Now, more voices have been raised after seeing a series of important decisions going in favour of the ruling dispensation and contrary to constitutional values. Therefore, it is high time there is a relook at this matter, and one possible way is like how the collegium system evolved and the two most senior judges became part of it. Likewise, there may be improvement by decentralising the roster allocation, without an individual master holding a magic wand, and thus serving the needy appropriately.

A khap panchayat in Gurgaon in 2010 discusses changes in the Hindu Marriage Act. “Khap panchayats mushroomed largely due to the feudal parts of our society still wielding power despite the system of courts dispensing justice.” | Photo Credit: PTI

On systems like khap panchayats

Given the many gross violations of the principles of basic justice at the lowest levels of the system, such as directions to “tie a rakhi” or “marry the rapist” or a tacit blessing to “bulldozer” justice, do you think India is more comfortable with the concept of summary justice systems such as khap panchayats, which still wield enormous power in places like Haryana and Tamil Nadu, rather than with the Western model of jurisprudence?

The very reason why khap panchayats were allowed to mushroom was largely due to the feudal parts of our society still wielding power despite the well-developed system of courts dispensing justice. This was largely due to the delay in the justice dispensing system and, many times, the courts also go along with regressive social values. There has been always a huge demand to open panchayat courts at village levels to decentralise the dispensation of justice at the lowest level. The opposition to such a model was either on grounds of the composition of the judges or the feudal hold over village society which would pervert the system due to communal and caste pressures.

At times, even trained lawyers, contemptuous of having a trained judge dealing with such institutions, spoke in favour of lay persons holding the fort. P. Sivaswami Iyer, while speaking on the Village Courts Act, said: “As regards the capacity of a panchayat for the exercise of judicial functions, I am one of those who believe that the panchayat will be able to ascertain the truth and administer justice better than a single judge.”

But having inherited a legal system and introducing it in a semi-feudal country, we are yet to find a correct legal course of action. Instead, we have decided to outsource higher commercial value cases to private arbitrations and other cases to alternative dispute mechanisms such as Lok Adalats. With the result, with delayed justice, people necessarily look for solutions in kangaroo courts and submit themselves to khap panchayats. What is the use of having a national emblem underwritten with the words “Satyameva Jayate”?