Published date: 3rd Mar 1980, New Delhi

Poorly paid, snowed under by a huge backlog of pending cases, buffeted by the government’s attempts to manipulate judicial processes and appointments, our judiciary has not been able to preserve its independence. At the same time, our Constitution has been considerably tampered with by the legislature. What are the causes of this state of , and what can be done to improve it ?

WHEN the Constitution was enacted by the Constituent Assembly on 26 November 1949, it was meant to play an ever-present role in our lives. It set out our fundamental rights, provided definitions and guidelines for almost every human activity, and established our identities as citizens of a ‘sovereign, democratic republic’.

The Constitution also created the three branches of government : the executive, the legislature, and the judiciary. The first two, made up of the representatives of the people, handled day to day governance. The judiciary was entrusted with the task of acting as a check on, and a balance between, the powers of the executive and the legislature ; to see that they did not step outside of their defined roles.

The judiciary is expected to be a lofty, dignified and learned body, above temptations and pressures, capable of interpreting the laws of the land in their letter and spirit. ‘Justice’ is not an ordinary prefix to a judge’s name. Justice also implies the qualities of fairmindedness, decency, good faith, tolerance and humaneness.

The judiciary is the most valuable institution we possess. But its powers are more abstract than concrete. “The judiciary is the weakest branch of the government. It carries neither the power of the sword nor the purse. . . the measure of the efficiency of the judiciary is by authority of reason, rather than by reason of authority,” said Chief Justice Vanderbilt of the New Jersey Supreme Court. The ‘authority of reason’ can come about only if the judiciary is allowed to perform its task free from pressure.

Is this true of the judiciary in India ? There was a semblance of a benign, kindly, and independent judiciary till the early ’70s. By then, it was becoming clearer and clearer that our judges were not the Solomons we expected them to be. In the process of image-destruction, the government played a very subtle and sinister role.

Why, in a country like ours, should the government be at cross-purposes with the judiciary ? Simply because the overwhelming majority of our people are illiterate and do not even know what their basic rights are. For instance, our Constitution’s chapter on fundamental rights sounds clear enough. But read with the entire Constitution, one can detect numberless loop-holes that the government can and has used to imprison a person without trial, confiscate his property without compensation, and punish him without giving him a chance to protest. Using seemingly ‘legal’ methods, the government has restricted the independence of the judiciary and often taken its support for granted. It has sought to manipulate judicial processes in its own interests and has tailored the Constitution so adroitly that it is no longer the people’s most important document, but something that suits bureaucratic purpose.

Sabotaging the judiciary

If the judiciary is to be an incorruptible and independent body, the selection of its personnel is of the most cardinal importance. However, in our country, all appointments to the States’ High Courts and the Supreme Court are made by the government, ostensibly in consultation with the Chief Justices of the respective High Courts and the Supreme Court. The Chief Justices’ recommendations are not final. In many cases they are ignored, and the government gets the President’s approval for the appointment of a man of its choice.

The government can also delay promotions of judges to. higher courts, order the transfer of ‘trouble- some’ judges to distant places, or hold back their confirmation till a ‘suitable time’. The government has also often flouted the norms of seniority. In judicial promotions, the accepted precedent is to adhere to seniority. Although this is not enjoined by the Constitution, it has become a time-honoured tradition. Twice during Mrs Gandhi’s tenure as prime minister between 1966 and 1977, the Chief Justiceship of the Supreme Court was given to judges who superseded their colleagues. It was significant that the judges superseded had given rulings against the government. It is also significant that it was regarding the right of the legislature (specifically Parliament) to amend the Constitution-most importantly, the fundamental rights-that the government most often clashed with the Supreme Court.

In 1967 the Supreme Court, through Chief Justice Subba Rao, ruled in Golak Nath v. State of Punjab that the fundamental rights (listed in Part III of the Constitution) were inviolable, and that the State could not enact laws which took away or abridged these rights. The Golak Nath case related to the right to own property. The judgement was historic, for it defined the limitations of Article 368 of the Constitution, which grants the legislature powers to amend the Constitution.

Are the Directive Principles superior ?

After Golak Nath, the government felt that the Supreme Court had not accorded supremacy to the Directive Principles over the fundamental rights. The Directive Principles (listed in Part IV) are guidelines “fundamental in the governance of the country” which the State ought to apply in making laws. Among other duties, Part IV states that the State shall strive to ensure equitable distribution of material resources, avoid the concentration of wealth in a few hands, ensure equal pay for men and women, and so on. Part III (listing the fundamental rights) is believed to over- ride Part IV.

The government felt that the Constitution empowered it to abridge or remove fundamental rights in order to achieve the objects of the Directive Principles. This assumption was not warranted.

The next landmark was the Supreme Court’s decision in Kesavananda Bharati v. State of Kerala in 1973. In a 13-judge Court, a majority of seven ruled that under Article 368, Parliament did have the right to amend and abridge fundamental rights-as long as those amendments did not affect the ‘basic features’ of the Constitution. The term ‘basic features’ is vague and can be variously interpreted. It is, as one advocate says, like the king’s Foot in ancient Britain, varying in length from ruler to ruler.

Looked at from a socialistic viewpoint, the judgment in the Kesavananda case was a great victory. But from the point of view of those who espoused the citizen’s natural and human rights, it was a setback. More was to come. Chief Justice S.M. Sikri of the Supreme Court retired the day after the Kesavananda judgment was delivered on 24 April 1973. According to the norms of seniority, the Chief Justiceship should then have gone to the next seniormost judge, Justice J.M. Shelat. But Shelat and two other senior judges, K.S. Hegde and A.N. Grover, who had ruled against the government in the Kesavananda case, were superseded by Justice A.N. Ray, who had ruled in favour of the government. Justices Shelat, Hegde and Grover resigned immediately.

The chief architect of this denouement, Mohan Kumara Mangalam (who was Mrs Gandhi’s minister for steel and mines) confirmed the government’s intentions when he said the Chief Justice must ‘help’ the government, that his political philosophy must be the “most suitable’ from the executive’s viewpoint, and that he must ‘recognise the supremacy of Parliament’.

The reaction of the legal profession was instantaneous and vehemently critical of the government. A resolution passed by the Supreme Court Bar Association condemned “the attempt on the part of the government to make the judiciary subservient to the executive and subject to political pressures and de- pendent on government patronage and influence”. Many respected advocates joined in with their protests. Even Frank Anthony-later to become Mrs Gandhi’s senior legal adviser-complained that the “hole-and-corner, unprincipled political coup perpetrated against the Supreme Court savoured of a Communist style tactic”. Anthony said that there was no further need to amend the Constitution ; the required object had been achieved by having a subservient judiciary.

Subversion through amendments

Meanwhile, prior to the Kesavananda case, the government had already introduced two amendments to the Constitution-the Twenty-fourth and the Twenty- fifth-with strong overtones of authoritarianism. The Twenty-fourth Amendment (which came into effect on 5 November 1971) superseded the Golak Nath judgment by enacting that Article 13(2)-which provided that the State shall not make any law which takes away or abridges fundamental rights-shall not apply to constitutional amendments. This was only in preparation for the Twenty-fifth Amendment (which came into effect on 20 April 1972) which amended Article 31(2) to enable the State to confiscate anyone’s property by paying an “amount” instead of “full compensation”. This Amendment also inserted the infamous Article 31C, which provides that “no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39”-which dealt with the entire economic system- “shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the (fundamental) rights … ”

The Twenty-fifth Amendment sought mainly to overrule the Supreme Court’s striking down of bank nationalisation in R.C. Cooper v. Union of India (1970). In 1971, the Supreme Court struck down the abolition of Privy Purses in Madhav Rao v. Union of India. Immediately thereafter, the Twenty-sixth Amendment was passed, abolishing princely rulership and privy purses. The government had repeatedly sought to overrule the Supreme Court and had altered the Constitution to suit its purpose. In the light of these constitutional amendments, the Kesavananda judgment was not entirely unexpected.

It has been clearly stated that fundamental rights can only be amended (under Article 368) by a 2/3rds’ majority in Parliament, which is ratified by at least half of the States of the Union. Under Article 31C, however, only a simple majority is necessary. During the arguments in Kesavananda Bharati, the Attorney- General of India expressly referred, both in writing and orally, to the alternative of “political action” if the Supreme Court’s ruling did not find favour with the government !

The Thirty-ninth Amendment (in effect from 10 August 1975) and the Fortieth Amendment (in effect from 9 August 1975), which were passed by Parliament after the Emergency was declared on 26 June 1975, put the elections of the President, the Vice-President and the Prime Minister beyond the pale of law, and inserted the Prime Minister’s post in Article 361, which grants legal protection from civil and criminal proceedings to the President and the State Governors while they are in office.

On 29 May 1976, 16 judges from various High Courts in the country were transferred to other High Courts. It was the largest-ever such mass transfer. Clearly, the government felt these judges had to be removed from courts where they could impede its ‘socio-economic’ progress.

The fatal Forty-second

On 4 November 1975, the Rajya Sabha passed the Forty-second Amendment, thus in one fell swoop amending the Preamble to the Constitution, 36 Articles and the Seventh Schedule, inserting 11 new Articles and two new Parts, substituting four Articles with new ones, and empowering the President to remove difficulties in giving effect to the amendments. This Amendment also laid down that the Directive Principles of State Policy (in Part IV) cannot be held to be void on the ground that they contravene Articles 14, 19 and 31 (fundamental rights) ; a new article (31D) protected any law providing for prevention or prohibition of ‘anti-national activities’ or ‘formation of anti-national associations’ ; the “fundamental duties’ of the citizen were laid down; it was stipulated that Central and State laws cannot be held to be constitutionally invalid unless a two-thirds majority of the judges of the Supreme Court or High Court hold it to be so ; finally, the Forty-second Amendment stated that amendments to the Constitution cannot be called into question in any court on any ground.

Referring to the Amendment, Mrs Gandhi said, “Our intention in bringing some (sic) amendments to the Constitution is only to strengthen the sovereignty of Parliament. . . and to meet the changing needs of the times.” To this, the eminent lawyer C.K. Daphtary replied that the chapter on fundamental rights could as well have been entirely deleted, so draconian was the effect of these amendments. As though these attacks were not enough, Law Minister H.R. Gokhale said the government would review the judicial system and possibly restructure it. The system, he said, was “neither in tune with our national genius nor with the aspirations and expectations of our people”.

Was any further proof required to show that the government felt the Constitution, and the judiciary, were stumbling-blocks in its “march towards a better tomorrow” ?

It was in the shadow of these constraints that the Supreme Court, through a five-judge Bench, delivered the crucial judgement in the famous Habeas Corpus case (Additional District Magistrate, Jabalpur v. Shiv Kant Shukla) on 28 April 1976. Justices A.N. Ray, M.H. Beg. Y.V. Chandrachud and P.N. Bhagwati, upholding the government’s case, said that a detention order issue under MISA cannot be challenged under Article 226-which empowered High Courts to issue directions, orders and writs (including those in the nature of habeas corpus, mandamus, quo warranto and certiorari) for the enforcement of any fundamental right- al long as the Emergency was in force. The only dissenting judgement came from Justice H.R. Khanna, who said that Article 226 cannot be suspended.

Supersession again

Justice Khanna’s courageous stand was noticed and praised the world over. But the government clearly felt he was not ‘committed’ enough. Justice Khanna was next in line in seniority to Chief Justice A.N. Ray ; but when the latter retired in January 1977, Justice Khanna was superseded by Justice M.H. Beg, who became the new Chief Justice. Khanna promptly resigned.

Once again, the government had demonstrated that it would brook no opposition from a judge of the highest court of the land.

There was an earlier, and equally interesting, case in which the legislature tried to prove that it was superior to the judiciary, In 1964, one Keshav Singh was committed and imprisoned by the U.P. State Legislative Assembly for contempt. He moved a habeas corpus petition through an advocate before two judges of the Allahabad High Court, who admitted the petition and granted him interim bail.

Instead of proving that its detention order was justiciable, the Assembly held the concerned advocate and the two judges also guilty of contempt and ordered their imprisonment ! Fortunately, the President referred the matter to the Supreme Court, which held that the High Court could entertain a habeas corpus petition and grant interim bail, and that the presentation and the hearing of such an appeal did not constitute con- tempt of the House.

The government of the day had proved that the warning given by Junius, an anonymous and controversial letter-writer in London in the late 18th Century, had substance: “We can never be really in dan- ger till the forms of Parliament are made use of to destroy the substance of our civil and political liberties ; till Parliament itself betrays its trust by contributing to establish new principles of government ; and employing the very weapons committed to it by the collective body to stab the Constitution.”

After all, on 8 August 1975, Law Minister Gokhale had clearly said that a “fresh look” must be taken at the fundamental structure of the Constitution itself, “to strengthen democracy, socialism and secularism”. Gokhale went on to opine that the Constitution “was framed years ago when the situation was different. But the Constitution is an instrument. It is not an end in itself. People cannot be chained to a document which hinders socio-economic measures.”

Partial corrections

The Janata government tried to set some of these imbalances right. In February 1978, when Chief Jus- tice Beg of the Supreme Court retired, he was succeeded by the next seniormost judge, Justice Y.V. Chandrachud (who will hold office untill 1985). If the government had applied its predecessor’s standards, it could have possibly superseded Justice Chandrachud because he had ruled in favour of Mrs Gandhi’s government in the Habeas Corpus case. And on 30 April 1979, after a rough passage through Parliament, the President approved the Forty- fourth Amendment Bill. The Janata government had introduced a clause whereby amendments of fundamental rights would have to be approved by a national referandum. This was voted out in the Rajya Sabha, where the Janata was in a minority. Opposing the referendum clause in the Lok Sabha on 4 May 1978, C.M. Stephen, the leader of the Opposition, had said that “The Parliament is the people and powers delegated by people to Parliament cannot go back to the people during that tenure.” When asked what would happen if Parliament becomes the captive of one person, as had happened during the Emergency, Stephen replied that the “people get the government or leader they deserve”.

The Forty-fourth Amendment deleted Article 19(1)(f)-the right to own property-and dropped Article 31. It introduced a new article to ensure that no person shall be deprived of his property save under authority of law. Article 31A was retained, under which land could only be acquired within prescribed ceilings, and full market value would have to be paid as compensation. Article 31C was limited to legislation under- taken to promote two Directive Principles-the equitable distribution of material resources, and the prevention of concentration of wealth. Article 352 was altered to read that the President can declare a state of internal emergency only in case of “armed rebellion”. In the course of its passage, however, the referendum clause was deleted ; the supremacy of the Directive Principles over the Fundamental Rights continued ; and the provision brought in by the Forty- second Amendment, empowering the Central government to deploy armed or other forces under the control of the Union in aid of civil power in the States, was retained.

Eminent legal personalities are divided into two distinct camps-one fiercely in favour of preserving human rights and judicial independence, the other equally fervently upholding the arguments put for- ward by Gokhale, Kumaramangalam and Mrs Gandhi. The first camp definitely outnumbers the second. But the second camp is closer to today’s seat of power, and therefore more confident.

In the light of the recent change of government, it is important that we learn something about our rights, our place in society, and acquaint ourselves with the role of the judiciary and lend our voices to the preservation of its independence.

How to appoint judges

In his book Crisis in Indian Judiciary, which he wrote after his supersession by Justice A.N. Ray and his resignation from the Supreme Court in 1973, Justice K.S. Hegde mentions that a committee of the Constituent Assembly (which consisted of Sir Varada- chariar, Sir Alladi Krishnaswamy Iyer, Sir B.L. Mitter, Dr K.M. Munshi and Sir B.N. Rau) had observed : “We do not think it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union.” The committee recommended either of two methods.

In the first, the President would, in consultation with the Chief Justice of the Supreme Court, nominate a person whom he considered fit to be appointed to the Supreme Court ; this appointment would be con- firmed by a majority of at least seven out of a panel of 11 composed of some of the Chief Justices of the High Courts, some members of both Houses of Parliament, and some of the law officers of the Union. The other method envisaged that a panel of 11 would re- commend three names out of which the President, in consultation with the Chief Justice, would select a judge for appointment. To ensure that the panel would be independent, the committee recommended that it be appointed for a three-year term.

Until H.R. Gokhale took over a’s Law Minister, judicial appointments were made at the initiative of the Chief Justice of the Supreme Court, and no one was appointed without his concurrence.

Soli J. Sorabjee, until recently the Additional Solicitor-General of India, felt that no aberrations have occurred in judicial appointments except during the Emergency. Did he think judicial appointments, transfers, and non-confirmations contributed to a process whereby justice was very often ‘politically expedient’ ? He did not. He felt that judgments were more based on judges’ sense of values than on their political sympathies. He was unwilling to go into the question of how the government applied pressure on the judiciary.

Pran Nath Lekhi, who was the government counsel in the Shah Commission hearings, and who has recently written an angry and emotional book titled Witness for Prosecution : Sedition Unmasked, was quite outspoken. Justice, he said, was rarely ‘dispensed’, it was usually ‘purchased’. The system of administration of justice had become corrupted.

Comparing our system to that of the United States, Lekhi said that in the US, the Supreme Court was more independent because of the inherent quality of its judges, who make no bones about their predilections. The judicial commitment in the US is pragmatic, he said, while here it is opportunistic. Lekhi also felt that the fact that Supreme Court judges held life-tenures in the US, while here they retired at 65, was important. A High Court judge retires at 62 in India, and “for those extra three years, many judges might lobby to get themselves elevated to the Supreme Court”.

The Brahmin factor

Lekhi felt that judges’ unconscious commitment to certain values, and their inborn prejudices, affected their legal reasoning. But socially, too, he felt the judges were a class apart. “Do you know,” he said, “that in 30 years of our Constitution, not a single Scheduled Caste man has ever graced the benches of the Supreme Court ? More than 40 per cent of all Supreme Court judges so far have been Brahmins !” Lekhi also pointed out that during Mrs Gandhi’s regime, the Ministry of Law and Justice and the Minister of Home had been given a common secretary, who was more often concerned with choosing a person politically acceptable to the government of the day. He said that the Janata government was ‘thinking’ of implementing the ‘committee’ method for judicial appointments. He ascribed the Kesavananda judgment directly to Mrs Gandhi’s overwhelming electoral victory in 1971, prior to which she had been demanding a mandate to amend the Constitution.

1973 was a grim year for the judiciary, for it was then that the government began to ‘pack’ the Supreme Court with sympathetic judges. In his book, Justice Hegde also appears to disapprove of Justice V.R. Krishna Iyer’s appointment to the Supreme Court. Justice Iyer, who was once minister for Law, Home, Irrigation and Power in the first Communist ministry in Kerala, supported the Twenty-fifth Amendment in an article in a pro-CPI journal in breach of the norms of judicial propriety. Hegde quotes Iyer’s endorsal of a public statement made by Justice Dhawan of the Allahabad High Court, that “a judge without prejudice is a judge without a mind. . . there would be no progress without the right kind of prejudice.” Hegde, in his book, says that Chief Justice Sikri had objected to the appointment of Justice Iyer to the Supreme Court. His appointment, strangely enough, was announced not from Rashtrapati Bhavan, as is usual, but by the Chief Minister of Kerala !

Gobinda Mukhoty, a Supreme Court advocate, who is actively connected with the civil-rights movement (he is Chairman of the People’s Union for Civil Liberties) beganly recalling how, after Justice Ray had been sworn in as Chief Justice in 1973, Kumaramangalam had shaken hands with him and said, “Now you know how we look after our own.” No cabinet minister, Mukhoty pointed out, had the right to denigrate the judiciary.

“M.C. Setalvad, M.C. Chagla and I,” said Mukhoty, “formulated a policy whereby a committee consisting of the Chief Justice and two seniormonst judges of the Supreme Court, the President of the Supreme Court Bar Association, and the Chairman of the Bar Council of India would decide appointments to the Supreme Court. This was never even considered.”

Mukhoty echoed Lekhi’s feeling that more members of the Bar ought to be elevated to the Supreme Court. Only two judges-S.M. Sikri and S.C. Roy- have been elevated thus from the Bar in the Supreme Court’s history. And only Justices Khanna and D.G. Palekar rose from the lowly position of munsifs to judgeships of the Supreme Court.

Judges and ethics

Mukhoty recalled the habeas corpus petition filed by Kuldip Nayar in the Delhi High Court during the Emergency. Justice S. Rangarajan, who ruled in Nayar’s favour, was summarily transferred to the Gauhati High Court shortly there after! And Justice R.N. Aggarwal, who had merely concurred with Jus- tice Rangarajan’s ruling, was not confirmed in his High Court post and reverted to the District Court. Once a process is set in motion, said Mukhoty, it takes its toll. “Once judges know they will get promotions for favourable judgements, they will bend only too easily.” He recalled that he had told Gokhale, before the latter became Law Minister, that the retirement age of judges should be uniformly raised to 70 or 75 ; alternately, they should be paid the same salaries or perquisites they enjoyed during their tenures. “Financial need will then not arise, and we will not have the unseemly sight of retired judges hanging around the ministries of Law and Home, clamoring and jockeying for top positions in the commissions and tribunals our governments are so fond of forming.”

Referring to the practice whereby retired High Court judges could practise in other High Courts or in the Supreme Court as advocates, Mukhoty said this prevented capable and younger lawyers from expanding their reputations. “If a retired judge reverts to being a lawyer, he also demeans himself.”

But Mukhoty is most concerned about the possibility of further amendments to the Constitution that might affect fundamental rights. “As long as the Kesavananda judgment stands and is not overruled, the government can continue to change the Constitution, lock, stock and barrel.”

Ram Jethmalani, MP and a well-known Supreme Court advocate, was not so unequivocal. “We have a written Constitution,” he said, “and questions with very heavy political overtones end up as constitutional questions in our courts. After all, our governments are only human, and without being dishonest, they prefer smooth sailing in the courts.”

There is an “eternal temptation”, said Jethmallani, to have pliant judges. Only governments with a very strong commitment to the rule of law, and steeped in constitutional propriety, would resist this temptation. “Mrs Gandhi is a singular case of a prime Minister who not only did not resist this temptation but publicly declared that she was proud of it.”

Referring to Mrs Gandhi’s ‘reconciliation’ statement after she took over as prime minister in January this year, Jethmalani said that Kumara Mangalam’s thesis of a “committed judiciary” was a “glaring black spot” on her record, which she had not tried to erase. The President, in his address to the joint session of Parliament in January, had insisted the government would maintain the independence of the judiciary. “How will they do it ?” asked Jethmalani, “when hand- picked judges interpret the law in a manner conducive to the government ?”

Villains and heroes

Did he feel the withdrawal of the Baroda Dynamite Conspiracy case was an example of a politico-judicial decision ? “If the sovereign power is not democratic but dictatorial, nobody can blame those who indulge in such (political) offences,” he said, “and the next government has the right to withdraw the cases against such persons and declare them heroes.”

After struggling for so many years, and after acquiring enormous legal knowledge, how could a judge be asked to retire in his 60s when he is actually in peak form, asked Jethmalani. His suggestion for judicial appointments was that all candidates must be screened by high-powered committees of the Bar on which some ex-Chief Justices of the Supreme Court could be coopted. These committees should report to the incumbent Chief Justice, and their recommendations must be considered with “tremendous respect”.

Vithal Mahadeo Tarkunde, a former judge of the Bombay High Court, a respected jurist, and a constitutional expert, seemed to echo Lekhi when he said that after her electoral victory in 1971, Mrs Gandhi had consistently tried to appoint judges who would conform with her political objectives. “In our Constitution, there are no safeguards against politically motivated appointments ; a government that does not believe in the independence of the judiciary is enabled to interfere.’

Between 1971 and 1977, Tarkunde said, the government resorted to mass transfers, non-confirmations, and delays in appointments of judges. He felt that the President’s prerogative to disregard the recommendation of the Chief Justice of India in the appointment of Supreme Court judges must be cons- trained. Candidates for the Supreme Court, he felt, should be considered by the Chief Justice, four senior judges, and two nominees of the Bar Council of India. Commenting on how the government usually reacted adversely to Supreme Court rulings against it by slamming through constitutional amendments, Tarkunde said that when the Supreme Court struck down the Privy Purses abolition and the bank nationalisation, it had not called them unconstitutional, but had merely said they were wrong in law. Yet, the government, instead of correcting the few mistakes located by the Supreme Court, had taken recourse to sweeping amendments that put its actions beyond the purview of the courts.

Civil rights and the poor

Civil rights are not fully appreciated by people, said Tarkunde. “Actually, it is the poor people who need their rights more. Rich farmers, for instance, can go to the courts if their surplus lands are seized under land-ceiling laws. Our masses are not sufficiently educated in the fact that for their own struggles, civil rights are very necessary.”

Disagreeing with experts like Nani Palkhivala who feel that the right to property, too, is an inviolable fundamental right, Tarkunde said that from the beginning, the property right was not an ‘absolute’ right. 5 But he did feel, like Palkhivala, that Article 31C totally 0 destroyed our fundamental rights.

He had felt that the referendum principle would be highly educative, Tarkunde said. The people would learn that they were the true masters and, as time went on, would acquire more and more knowledge about their rights. In Australia, where a referendum is needed to approve constitutional amendments, only four amendments out of 12, which in no way affected fundamental rights, have ever been approved by the voters.

Roughly two years from now, when she finds she cannot actually solve all the problems plaguing the country, Mrs Gandhi’s true democratic test will come, said Tarkunde. “Will she be reconciled to the prospect of losing in popularity and thus her power ? Will she want to remain in power at any cost ? Will she once again subvert democracy ? These are the fundamental questions.”

In the Third World, India is the only large country to have remained democratic. This Tarkunde as- cribes to the fact that our people have had a better ‘experience’ of democracy, and attributes it to British rule. The British also left us concepts like the independence of the judiciary. “If democracy can survive for 20 years more in India, it will survive forever, better in mind, discriminating, and tolerant. But the next 20 years are going to be the most perilous.”

Justice Hans Raj Khanna, in contrast with the others I spoke to, maintained a dignified exterior and refused to be drawn into any controversy. To many questions, he asked me to refer to the report of the last Law Commission, which he had prepared but not signed. Last year, Justice Khanna resigned from the Law Commission when he joined the Charan Singh government as Law Minister ; a few days later, how- ever, he resigned from the Cabinet.

“As long as the judiciary decides according to the Constitution, and keeps the scales even in any legal combat between the rich and the poor, the mighty and the weak, and the State and the citizen, it would be discharging its essential function as contemplated by the Constitution,” said Justice Khanna. Differing with England’s Lord Denning, who has often ignored the rigidities of the statute in his crusade for ‘essential justice’, Justice Khanna said the judiciary should not go into the question of the wisdom of legislative measures, but take the Constitution and the laws as they are. “If a question arises about the constitutional validity of a law, the courts have to judge it in the light of the provisions of the Constitution. Courts do not act as super-legislatures. Their essential function is, firstly, to decide the constitutional validity as and when it is challenged, and secondly, to decide the validity of orders made by the State or its officers.”

Khanna on ‘Kesavananda’

Justice Khanna’s judgment in the Kesavaranda case had tilted the scales : until he delivered his judgment, the decision had been equally split between the other 12 judges, Did he now feel that that judgment gave the legislature a right to change fundamental rights that it felt were ‘obstacles’ ?

“That judgment should not cause any confusion,” said Justice Khanna. “It said in clear terms that the power of amendment is plenary (i.e ., something that goes through all prescribed processes) subject only to the condition that an amendment does not change the basic structural framework of the Constitution, While drafting the Constitution, we cannot expect its framers to have gone into the minutest details. The generality of provisions of the Constitution helps in the growth of the Constitution. The US Constitution, one of the briefest in the world, has stood the test of time because of the general terms in which its provisions have been framed.”

Murlidhar Chandrakant Bhandare stood out from the other personalities I met. While they spoke in their reasonably-appointed officers or homes, Bhandare was stylishly different, preferring to talk in the lush environs of the Delhi Golf Club. He and his wife Sunanda (who is H. R. Gokhale’s daughter) both practise in the Supreme Court.

Judges, especially of the Supreme Court, are prone to complain that they are not well paid, said Bhandare ; two years back, he said, Supreme Court Judges had been sanctioned free furnished accommodation and a “handsome’ car allowance-“their benefits, including salary, now near Rs 10,000 a month”.

“Isn’t that more than enough in a poor country like ours? Our judges are among the highest-paid people in the land,” said Bhandare.

As a matter of fact, a High Court Judge’s salary is Rs 3,500 per month ; the Chief Justice of a High Court, as well as a Supreme Court judge, gets Rs 4,000 a month ; while the salary of the Chief Justice of India is Rs 5,000. At the same time, the salary of the President-whice office is almost entirely titular and ornamental-is Rs 10,000 per month. Interestingly, judicial salaries used to be Rs 500 higher before the Constitution came into force on 26 January 1950: since then, they have not been revised even once. Whereas a Supreme Court advocate like Bhandare, as he himself admitted, “earns in multiples of a judge’s salary”.

‘Seniority not sacrosanct’

As for judicial appointments, Bhandare felt that seniority was definitely not sacrosanct. “Do you think at the level of the Chief Justiceship of the Supreme Court there can be no politics ?” He implied that Chief Justices are chosen more for their ‘blue blood’ than anything else. He said that judicial appointments were all too often made on the basis of the material success of the candidate in his profession, rather than on the basis of his intrinsic merit.

In Bombay, for instance, pointed out Bhandare, a leading lawyer, impeccable in merit and reputation, made little money but, representing mostly trade unions, became well known for his championship of the underdog. When this lawyer began to take up managements’ cases too (retaining his honesty and merit) his material position improved dramatically. Within six months, insisted Bhandare, this lawyer was elevated to the High Court.

Also, the proximity of candidates to judges helps in appointments, said Bhandare. “Why can’t we make a projection of all vacancies that will arise over the next five or ten years and then objectively plan inductions ? Why can’t more representatives of the Bar-at least one-third of the total number of Supreme Court Judges -be elevated ?”

Judges of the Supreme Court are always “divorced from social reality”, said Bhandare. “Once in two years it should be made compulsory for them to go around the country, to visit various High Courts in the exercise of their supervisory powers. In any case, how can 16 judges sitting here in Delhi deal effectively with the legal problems of an entire subcontinent ?”

Bhandare felt that the Supreme Court handles too many matters, not all of them important. “How could we expect the Court to rule on something as ridiculous as car prices ? A judge wouldn’t even know the difference between a clutch and an accelerator !” He also thought that Supreme Court rulings are often ambiguous. To support this thesis, he cited the judgment in the Jaisinghani case in 1967, which related to promotions of public-service officials. “Exactly the same kind of case has come up four times after that be- fore the Supreme Court,” exclaimed Bhandare. “Basically what we are doing is, treating an influenza patient for cancer.”

Bhandare was firmly of the opinion that political and economic decisions should not come within the scope of judicial review. “If the Golak Nath judgment had stood, even the First Amendment, which introduced Articles 31A and 31B and put Articles 14, 19 and 31 out of the way of land reforms, would have been struck down- and if that had happened, there would have been no Green Revolution !” He thought Parliament’s power to amend the Constitution should not be restricted. “Revolutions have occurred because laws have been too rigid.”

The biggest litigant

In what ways can this picture of the Indian judiciary be righted ? How can our judges be helped to resist temptations of power and pelf, of patronage and pecuniary benefits ? How can the government be restricted in its ‘eternal temptation’, as Ram Jethmalani put it, to subvert justice in its own interests?

To begin with, we must understand that the government is the biggest litigant in the country. Our courts are snowed under endless litigation ; justice is torturously long in coming, often one-sided, and all too often prohibitively expensive for the common man. In the Supreme Court, close to 1,500 miscellaneous matters are filed every month ! Our statutes are becoming too numerous and cumbersome.

And consider this fact : in 30 years of the Republic, the Constitution has been amended no less than 44 times, while an awesome total of 188 Acts have been inserted into the Ninth Schedule-which places them beyond challenge in any court.

Dr L. M. Singhvi, President of the Supreme Court Bar Association, said in a speech recently : “Judicial emoluments are inadequate and unattractive at all levels. What is worse, judges in the mofussils have to live and work under conditions which are not conducive to their dignity or independence. . . We have paid little attention to the quality and training of young entrants to the judiciary at the level of the munsif and the magistrate. Power without experience can have serious social consequences.”

While saying that “the problem of arrears must be solved urgently, sensibly and soon”, Dr Singhvi also condemned the fact that no government had bothered to examine the problem. “Has any government pre- pared a Five-Year or Ten-Year Plan to solve the problems of arrears ? Has any government so far shown any determination to provide the necessary inputs ? Clearly, tinkering, sloganeering and lip-service will not do when stark realities have to be faced.”

Liberty and justice

One proposal that had come up during Nehru’s time was that the country should have four Supreme Courts-say, in Delhi, Bombay, Madras and Calcutta -in order to cut down on time delays, the cost of litigation for people from distant parts, and also to preserve judicial independence by keeping the highest courts of the land out of the government’s easy reach. Many legal personalities find considerable merit in this idea. Gobinda Mukhoty pointed out : “Delhi is a foreign place for southerners. They have to come and spend months here, they are fleeced by shysters, and their cases drag on in the Supreme Court. What kind of justice is this ?”

Another proposal is that the Supreme Court be shifted out of Delhi altogether, so that it is not susceptible to political pressures-which are inevitable in the capital.

One question needing urgent investigation is that of judicial appointments. Every lawyer and judge has his own views on the manner in which appointments should be made. Perhaps a constitutionally stipulated method, which would have the concurrence of a majority of the country’s lawyers, could be the answer.

Reforms also need to be urgently made in regard to judicial emoluments. A judge’s salary is a mere fraction of what a senior advocate earns ; the temptation to return to the Bar, or to canvass for posts on all sorts of committees, commissions and tribunals, is ever-present. Restrictions must also be placed on the government’s power to appoint, transfer, or otherwise administratively harass the judiciary.

All these changes can come about only if we, as conscientious citizens, recognise and fight for our rights and for the independence of the judiciary. “Liberty lies in the hearts of men and women,” said Justice Learned Hand of the US Supreme Court. “When it dies there, no constitution, no law, no court can save it ; no constitution, no law, no court can even do much to help it.”