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Over the last 50 years, the Supreme Court of India has established itself as one of the indisputably great courts of the world. No other court in the free world exercises jurisdiction over more than a small fraction of the nearly one billion men, women and children who form the population of India. The Golden Jubilee of this Court is accordingly a matter of much more than local importance. I am greatly honoured to have this opportunity to pay tribute to its achievements over this crucial and formative period of its and the country’s history.

The honour and the pleasure are all the greater for a visitor from the United Kingdom since for over two centuries, for better or worse — I hope not wholly for worse — our fortunes and histories were so closely intertwined. [Read more…]

Note: This Article was first published in Supreme Court Cases (2000) 1 SCC J-29.It has been reproduced with the kind permission of Eastern Book Company.

† On the occasion of the Golden Jubilee Celebrations of the Supreme Court of India on 26-11-1999 at Vigyan Bhavan, New Delhi.

*Lord Chief Justice of England and Wales

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“A Judge of the Supreme Court is not entitled after retirement to plead or act in any court or before any authority within the territory of India. He has to depend during the declining years of his life on his savings and the pension to which he is entitled as a retired Judge. The meagre pension has thus also the undesirable consequence of driving some of the Judges who have retired to find remunerative occupation which affects the dignity of the high judicial office they held.”

The above is an extract from the 14th Report of the Law Commission of India on ‘Reform of Judicial Administration’ submitted merely a decade after independence. Evidently, more than sixty years ago to the day when a former Chief Justice of the Supreme Court would be nominated to the Rajya Sabha, the Law Commission of India, then headed by none other than M.C. Setalvad himself, came to express grave misgivings precisely regarding what has transpired by way of the Home Ministry’s Notification dated March 16, 2020.

The events as have unfolded herein may not be the first instance of such a brazen assault on judicial propriety and dignity. In fact, as far back as 1958, government employment of Judges after they had superannuated from the Bench had been expressly deprecated as one having a debilitating impact on judicial independence, with the Law Commission recommending a complete prohibition thereof.[1]

However, in the years that have ensued, nothing justifies the utter disregard and oversight on part of the framers of the Constitution as well as successive elected governments insofar as this gaping void in Chapter IV of Part V[2] of the Constitution is concerned. A perusal of the Constituent Assembly (CA) Debates clearly points towards a perceptible acceptance and imbibing of the best traditions of judicial independence as well as propriety. Paramountcy was given to ensuring that the Indian Republic is bestowed with a truly independent and free thinking judiciary.

Nevertheless, one cannot but notice the disproportionate preoccupation of the Constituent Assembly with the manner and mode of ‘appointments’ and ‘conditions of service’ of Judges to the detriment of other subliminal pressures acting upon them. Perhaps the thought ran that if citizens of high moral character are appointed and allowed to function in a sufficiently insulated and isolated environment, the pressures of the other gubernatorial branches would be unable to render pliable an ‘untouchable’ judicial setup.

In fact, Granville Austin in his seminal work on the workings of the Constitution of India while stoutly defending the appointment of Judges as it transpired in the pre-Indira era has laid out several instances of the grim reality of executive inter reference based on regional, communal, linguistic as well as caste based considerations.[3] Therefore, though no outward fault may be attributed to the Constituent Assembly’s oversight, it must be accepted that with evolution in gubernatorial functioning, judicial sanctity must also assume a dynamic, varied and evolved response. 

It is bewildering to note that a constitutional prohibition on holding of any government office post-superannuation has in fact been enacted in the very next chapter of the Constitution of India[4]; Article 148 providing thereby that,

“(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.”

Similarly, vide Article 319, insofar as the Chairman of the Union Public Service Commission is concerned, it has been provided that,

“(a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State.”

Evidently, thus, there exists ample precedence for a constitutional bar/prohibition on further employment under any government for those occupying certain constitutional posts. Perhaps an argument can be made out as nomination as a member of the Rajya Sabha strictly does not amount to ‘further employment under any Government’. Nevertheless, the manner in which a former chief of the Indian judiciary has been nominated to a legislative post shall surely dent the resolute confidence that the aware public reposes in those who occupy the highest echelons of our judicial setup.

In conclusion, it is put forth that if the state of affairs betrays a predisposed inclination, erosion of faith and confidence in the judicial establishment is indubitable. Only a bipartisan resolution to ensure that this failure and complete oversight on part of the framers of the Constitution is undone may possibly ensure restoration of judicial dignity. It is grossly undesirable that those sitting in judgment over a litigant should then be permitted to seek employment with the same litigant; such quid pro quo will surely be the death knell of natural justice.

* The authors are practising advocates in Delhi.

[1] Law Commission of India, Reform of Judicial Administration (14th Report, Vol. I,1958).

[2] Part V, Chapter IV of the Constitution of India consists of provisions establishing the ‘Union Judiciary’.

[3] Granville Austin, Working a Democratic Constitution: The Indian Experience (OUP; 2003; pp. 123-142)

[4] Part V, Chapter V of the Constitution of India pertains to the ‘Comptroller and Auditor General of India’.

Hot Off The PressNews

The yearlong nationwide activities on Constitution Day are being launched to mark the 70th anniversary of the adoption of the Indian Constitution by the Constituent Assembly, beginning November 26, 2019. The day 26th November is celebrated every year as Constitution Day (also known as ‘Samvidhan Divas’). These activities aim to reiterate and reorient the citizens towards the values and principles expressed in the Indian Constitution and encouraging all Indians to play their rightful role in strengthening the Indian Democracy.

Various sections of the society will do a mass reading of the Preamble to the Constitution at 11:00 am on the Constitution Day. Like every year, each Ministry/ Department/ Organisation will take up a mass reading of Preamble of the Constitution to mark the occasion. Talks, discussions and seminars will also take place all over the country on Constitution Day.

The aim is to publicize the glorious and rich composite culture and diversity of our nation. Further, it aims to create awareness of Fundamental Duties as enshrined in the Indian Constitution. As citizens of our great nation, we believe firmly in Gandhian thought that ‘The true source of rights is duty. If we all discharge our duties, rights will not be far to seek’ and as said by Sardar Patel, ‘Every Indian should forget that he is a Rajput, a Sikh, or a Jaat. He must remember that he is an Indian and he has every right in his country but with certain duties’.

The activities on Constitution Day will see participation and cooperation from all Ministries/ Departments at the Centre/State, Autonomous Bodies/Public Sector Undertakings, Armed Forces and Central Public Organisations etc. Further to make it a peoples’ movement, the Prime Minister, Shri Narendra Modi has interacted with the entire nation through ‘Mann ki Baat’ on November 24, 2019. The President of India, the Vice President of India, the Prime Minister, the Speaker of Lok Sabha, the Minister for Law & Justice and all Members of Parliament will participate in a special function being organized in the Central Hall of the Parliament on the Constitution Day. A Digital Photo Exhibition will be inaugurated and a Portal on Youth Parliament Scheme will also be launched on this occasion. As a mark of solidarity and an appeal to citizens of India to exhort their contribution during the campaign, an electronically signed Pledge by the Prime Minister be rendered to the public at large.

[Source: PIB]