Balancing the scales

It is said that the Constitutional philosophy of the Chief Justice of India, that is the way he or she looks at the Constitution, defines...

It is said that the Constitutional philosophy of the Chief Justice of India, that is the way he or she looks at the Constitution, defines the character of the Supreme Court. So Justice J.S. Verma8217;s judicial activism was based on his conviction that implementing the law was as important as upholding it. His successor, Justice M.M. Punchhi, was more conservative: to him a case was more about the letter of the law than the big picture. Chief Justice Dr Adarsh Sein Anand, the 29th CJI, who takes over from Justice Punchhi, is likely to hold the scales and do the balancing act.

Nothing could be more illustrative of this than his judicial pronouncements: 8220;While acting within the bound of law, the judiciary must always rise to the occasion as guardians of the Constitution, the criticism of judicial activism notwithstanding8221; or 8220;The Constitution does not give unlimited powers to anyone, including the judges. Judicial activism and judicial restraints are two sides of the same coin.8221;

A keeper of judicialconscience, Justice Anand headed the committee that formulated a 16-point code of conduct for judges in order to re-affirm people8217;s faith in the judiciary. Now, as the patriarch of the judicial family, Justice Anand would apply disciplinary spurs not only to curb any adventurism masquerading as activism but also to act in the interest of the judiciary.

As he said during the Justice Krishna Rao memorial lecture at the National Law School, Bangalore: 8220;The erosion of the judiciary8217;s credibility is the greatest threat to the independence of the judiciary. Eternal vigilance by the judges to guard against any such latent danger is necessary lest we suffer from self-inflicted mortal wounds.8221;

Inheriting as he does an institution mired in controversies, Justice Anand also faces the uphill task of pulling together a fragmented court and finding a voice that speaks for the entire fraternity. By excusing himself from the Constitution bench hearing the Presidential Reference on the transfer and appointment ofjudges, he seems to have begun on the right note.

All of Justice Anand8217;s pronouncements are essentially rooted in some constitutional text. For instance, in a PIL he heard on vehicular pollution, he linked the harm caused to the environment to a person8217;s fundamental right to a good life as enshrined in Article 21 of the Constitution.

However, his most-publicised case has been that relating to D.K. Basu, in which Justice Anand passed 10 directives on the rights of a prisoner in order to combat the 8220;evil of custodial crime8221;.

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Justice Anand has also been associated with a string of rulings concerning women, such as the Hindu widow8217;s right to maintenance and to inherit property flowing from the social and temporal relationship between the husband and wife, which is a pre-existing right. In yet another case, he suggested that rape cases should preferably be tried by woman judges while noting that 8220;inherent bashfulness of females and the tendency to conceal the outrage of sexual aggression are factorswhich the courts should not overlook.8221;

A first-generation lawyer, Justice Anand was born in a family of businessmen, but as he says, he never had 8220;any aptitude8221; for business. What would he have been if not a lawyer or a judge? 8220;Frankly speaking, I don8217;t know. Maybe a professor of law.8221; Academically inclined, he obtained a doctorate in constitutional law and proceeded to join the Inns of Court.

An appointment as an additional judge in the Jammu and Kashmir High Court in 1975 launched his career as a member of the judiciary and seven years later, he was elevated to the Supreme Court. Always aware of his constitutional duty, he has acted at all times in strict accordance with definite conceptions about the role of the judiciary, which he had actually spelt out in a judgement quashing a Madhya Pradesh High Court judge8217;s order giving directions to the apex court. 8220;Sources of legitimacy of the judicial process were in the impersonal application by the judge of recognised objective principles, which owedtheir existence to a system, as distinguished from subjective moods, predilections, emotions and prejudice.8221;

Rigorous and thorough with details, Justice Anand is known for a cool and determined approach in court, often censuring lawyers for being ill-prepared with their brief. Outside the court, he is the urbane, genial Punjabi who loves to recite Urdu poetry. Crowning a legal innings spanning over two decades, Justice Anand8217;s three-year tenure at the helm will see him taking the institution into the next millennium, where his thrust areas are going to be giving momentum to the long slumbering but always living issue of legal aid services and strengthening the human rights movement. While a gift of comprehension and receptivity will enable him to adjust to the ever-changing currents of events, he will be treading the fine line between judicial truisms and adventurism. His will be an animated but not a runaway judiciary.