Judicial independence: Threats from within

The Supreme Court’s judgment in the case of Shanti Bhushan vs. Union of India has been delivered. My earlier post tried to sum up the arguments in the case. The core issue in this case, to recall, is this: whether a fresh consultation within the existing collegium of the SC is necessary when an Additional Judge is being appointed as a Permanent Judge. Shanti Bhushan argued that it is mandatory. The Union of India disagreed.

In their judgment, Justices Pasayat and Mukundakam Sharma agreed with the petitioners that the extension given to Justice Ashok Kumar as Additional Judge of the Madras High Court, when he was found unsuitable for elevation as Permanent Judge in 2005 by the then Chief Justice R.C.Lahoti was wrong. But the Judges said the clock could not be put back, because the petitioners had failed to move the Court then. In Paragraph 14, the Judges said: “Since it is crystal clear that the Judges are not concerned with any political angle if there be any in the matter of appointment as Additional Judge or Permanent Judge; the then Chief Justice should have stuck to the view expressed by the colllegium and should not have been swayed by the views of the government to recommend extension of the term of respondent No.2 for one year; as it amounts to surrender of primacy by jugglery of words.”

Still, the Judges disagreed with the petitioners that fresh consultation within the collegium is necessary when an Additional Judge is being promoted as a Permanent Judge. To reject the plea that non-consultation is illegal, the Judges cited the practice of previous CJIs who had also disregarded this perceived requirement in more than 300 such cases. Do bad precedents make good law? This case is sufficient to show that the interpretation of SC’s judgments in First, Second and Third Judges cases is very problematic. This latest judgment, in fact, seems to suggest that the primacy of collegium is irrelevant if an additional Judge is promoted as a Permanent Judge, or even the term of the Additional Judge is sought to be extended. Is it another way of telling the Government that it can dilute the Second and Third Judges decisions by appointing more additional Judges first, and later appoint them as Permanent Judges, thus compromising the primacy of the collegium or the CJI? The Court appears to be saying: “Yes, we agree, a wrong has been committed in the extension given to an Additional Judge, and (possibly) his subsequent promotion as a Permanent Judge. But we are helpless in correcting it”.

Incidentally, I happened to read the Daedalus Fall 2008 issue on Judicial Independence. It starts with an opening essay by Linda Greenhouse on Judicial independence: why and from what? She explains that judicial independence means independence from overt political pressure and retaliatory dismissal; but it is not independence from any and all constraints: precedents, respect for the roles of the co-equal branches of government, and the norm of impartiality. Another observation which I liked in this issue is this: “Judicial independence is neither an end in itself, nor an abstraction to be taken for granted.” I leave it to the readers to decide how we could place this latest judgment.

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