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The Great Indian Judiciary (Part-1)

- Vishal Kumar Singh,

Advocate, Patna High Court


For the past few years, the Indian Judiciary has been going through a phase of systematic evolution led by certain dramatic incidents starting from the ambivalent press conference by the four most senior puisne Judges of the Hon’ble Supreme Court in the month of January, 2018. This quartet of puisne Judges also included Mr. Ranjan Gogoi (Former Chief Justice of India and presently, a member of the Upper House of the Parliament). Very recently after a couple of days of his highly debated nomination in the Rajya Sabha, Former CJI said that a “lobby” of half a dozen people, which he said, is holding “judges to ransom”. He said unless the “stranglehold” of this “lobby is broken, judiciary cannot be independent”.

Here, it shall be noted that Mr. Gogoi has already expressed his concerns in past (in the January, 2018 press conference) in which concerns were raised on the ‘undemocratic’ working style of erstwhile CJI Mr. Dipak Misra. Mr. Gogoi is a respected person from the legal field in India, his comments in regard with the independence of Judiciary in India cannot be ignored as any random concern. It should also not be ignored because it is coming from the only Judge out of the set of four puisne Judges who has served as the CJI.

This should not be marked as irrelevant because in past as well we have seen that the Hon’ble Justices have raised their concerns over the issue of Judicial Autonomy and Independence. In August, 2019 there were rumours of conflict between Justice A.P. Shahi and Justice Rakesh Kumar of the Patna High Court. While hearing a case regarding embezzlement of funds by an Ex-Bureaucrat, Justice Kumar commented on the issue of corruption in the judiciary. The very next day, Justice Shahi- the then Chief Justice of the Patna High Court withdrew all the judicial works from Justice Kumar and then later on the same day a bench of 11 Judges of the Patna High Court stayed the order passed by Justice Kumar. Later, in October, 2019 Justice Shahi was transferred to the Madras High Court as the Chief while Justice Kumar- who at that time was the second senior to the Chief Justice was transferred to the Andhra Pradesh High Court as a Judge. The collegium headed by the then CJI Gogoi did not cite a single reason for the transfer of Justice Kumar from the Patna High Court. So, if now as a respected member of the Upper House of the Parliament Mr. Gogoi is so concerned about the independence of Judiciary, it must be appreciated. However, it can be perceived that had this concern been raised in his mind prior to his retirement as the most powerful and senior Judge of the nation, just a few months back it would have definitely been much more beneficial for the cause of justice.

Motilal C. Setalvad (first Attorney General of India) raised a few concerns about the independence of Judiciary in the 14th Law Commission of India report as its chairperson. He specially raised the issue of appointment and transfer of Judges (the method of appointment at that time was not as per the collegium system and Governments at Centre & State both had a say in that, even Attorney General had his share of reservations when the names came for appointment and transfers). Infact, as per few stories of that time- Setalvad played a very crucial role in rejection of elevation of Justice M.C. Chagla- who at that time was the Chief Justice of the Bombay High Court in the Apex Court. Needless to say, the roots of this controversy can be traced back to both (Setalvad and J. Chagla) belonging to the Bombay Bar- which is still considered as the most vibrant of all the Bars in India.

We have also seen that how the Congress led governments used to treat Judges of the Indian courts in past. The Indira F. Gandhi govt. had a record of arbitrariness in practice while transferring and appointing the Judges. Judicial transfers are majorly of two kinds- routine and punitive. Generally a transfer is considered as a routine one when a Judge (Puisne) is transferred as a Chief Justice in another High Court or a Chief Justice is transferred as a Chief Justice in another High Court of that reputation or elevation as a Judge of the Apex Court while a punitive one means that a Puisne Judge shall continue to be a Puisne Judge upon his transfer in the another High Court and the Chief Justice shall remain as Chief Justice in the another High Court of less repute. Very recently, Justice Murlidhar of the Delhi High Court was transferred to the Punjab and Haryana High Court. We ourselves can assess the category of this transfer.

Former CJI Gajendragadhkar has contributed much as the Chairperson of Law Commission of India in this regard in its 80th report. The 80th report is the one in which for the first time an informal (later institutionalised) collegium system was discussed. As the chairman of Law Commission of India Justice Gajendragadhkar for the first time talked to the then PM Morarji Desai in this regard who then called upon his Law Minister Mr. Shanti Bhushan who did not pay much heed to J. Gajendragadhkar’s concerns on this issue. This controversy can be traced back to a small conflict between them. There was a time, when Justice Gajendragadhkar was the CJI and the name of Mr. Bhushan was recommended for the Judgeship of the High Court. Justice Gajendragadhkar followed an unique style of appointment criteria including the one which provided that the minimum age of the High Court Judge must be 45 years. Mr. Bhushan was not even 40 years old at that time. Mr. Bhushan as a result was not appointed. This small incident somehow created a difference between them.

(to be continued…)

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