Opinion Upendra Baxi writes: What does justice mean in Justice Varma case

At the same time, the CJI and the collegium are justified in taking suitable administrative action, within their competence, and have decided both to transfer the justice to his parent court, the Allahabad HC, and then to de-roster him pending enquiry. The ire of the Allahabad HC Bar Association over this is understandable but the language they have used is not. No court is to be regarded as a “dumping ground” for “corrupt” and “tainted” justices, and the policy needs a sustained second look as merely transferring a justice accused of corruption is no answer at all to the underlying problem.

The wider issue of a strike call by the Bar is settled by the 2003 decision of Ex-Captain Harish Uppal, where the Supreme Court held that neither the Bar Council nor the Bar Association can sanction the calling of meetings to discuss going on strike. The court remained anxious about situations where lawyer strikes obstruct justice administration by prohibiting advocates from appearing before district or high courts. It also showed that appellate courts, at the same time, ought to remain extra sensitive in facilitating prima facie just complaints against judicial officers — these must be considered most expeditiously and equitably.

Addressing a distinguished gathering of justices and jurists, Dhankhar recently said that the Supreme Court’s decision to strike down the NJAC constitutional amendment and the Act was a “scenario perhaps unparalleled in the democratic history of the world”. Of course, so was the 50-plus year-old Kesavananda Bharati declaration of implied limitations on Parliament’s powers to amend the Constitution under Article 368.

True, the angst over the striking down of the NJAC amendment centred on the fact that it had been passed by Parliament with only one dissent (veteran lawyer Ram Jethmalani being the sole voice against the amendment) and ratified by 18 states. The parliamentary verdict was only fully accepted by Justice Jasti Chelameswar who held that the “judiciary is not the only organ which protects the liberties of the people”.

The majority (led by Justice Jagdish Singh Khehar) carefully declared the NJAC void as it would breed a culture of “reciprocity” of favours between the government and the judiciary, and thus “destroy” the integrity of the structures of the constitutional judicial review, and he pointedly asked how future judges appointed under the NJAC could be independent-minded when the NJAC was “exclusively placed under the control of the executive”.

Contrary to a semi-literate reading of the decision (which perpetuates the convenient political myth of judges appointing judges), the majority upheld the President’s power to appoint justices subject to the advice of the judicial Collegium. The collision now is between the two constitutionally “limited” primacies — that of the President and the Collegium. There is currently plenty of evidence to suggest a constitutional dyarchy at work, wherein both the executive and judiciary together agree on the nominations, save perhaps when the Collegium reiterates its decision. However, the present event of alleged judicial corruption scarcely bears the weight for any re-consideration of the Collegium as the concerned Justice was elevated by both the competent constitutional authorities.

Justice Madan Lokur wondered aloud, in a concurring NJAC opinion, whether bringing back into action the tradition of “committed judiciary” would do the country any good at all and his conclusion was resoundingly in the negative. In fact, he declared the very idea of a committed judiciary as now constitutionally “unimaginable”. Jethmalani’s cry in the wilderness, based on the events and lived experiences of the Emergency of 1975-77, should forever be heard even by our constitutionally hearing-impaired ears.

The public outrage at the outburst of high judicial “corruption” is indeed a matter of social perception but it masks what I described in my Chimanlal Setalvad Lectures (1985) as a cluster of 10 factors by which trade and industry besiege judicial independence. The imperatives of the ideologies, and technologies, of neo-liberalism now need to address and redress the real causes and consequences of what I then named “judicial independence within dependence”.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi