Saving judges from politicians

All too often, the Opposition parties demand a judicial enquiry; and so do various activist groups, who don’t trust the executive. Some justices like a kind of ‘sabbatical’ from their judicial work. Wholly understandably, this invites often the unworthy (and not wholly extravagant) suspicion of a career ‘reward’.

The more sitting justices succumb to the pressure, the more is the erosion of the constitutional faith in the integrity of the judiciary.

The cost is spiralling so high that the only way to move forward is to enact a norm that justices shall not be pressed to these tasks excepting in the rarest of rare cases. In such cases, the CJI and the concerned nominee for a commission of inquiry must not make that determination.

Rather, a collegiate procedure should be evolved where five senior most incumbent Supreme Court justices should decide. That procedure should also extend to: one, judicial whetting of the terms of reference and two, the prior determination of maximum period of enquiry and, three, ways of ensuring that the commission is resourced adequately in advance of its appointment.

Retired judicial personages may not be appointed, whether to commissions of inquiry, or to statutory and other commissions, without a similar high-level deliberative engagement. Of course, post-retirement, these personages remain free to render whatever services expected or required of them by the political regime of the day. But that freedom needs to be regulated because a superannuated justice in India is by common courtesy still called as ‘Justice’ and commands virtues of integrity and reticence.

Acclaimed human and social rights activists, no matter how distinguished in terms of their contribution, remain simply ineligible. Can any one name a commission headed by such publicly trusted eminent citizens which includes justices with record of activism?

If this suggestion is unacceptable, then Article 18 of the Indian Constitution, which prohibits the use of titles and honours in any inegalitarian mode, should be translated into ‘hard’ law, i.e., no superannuated justice should be allowed to use the title of a judge.

The writer is professor of law at the University of Warwick, UK