Judicial Conundrum in India

Recently one fire incident in the official resident of Justice Yashwanta Varma led to recovery of crores of burnt notes not only  shocking but also shook people's confidence in higher Judiciary as an infallible institution .One store room of justice Yashwanta Sinha was caught fire while he was not in his resident,and fire brigade came to extinguish fire and crores of burnt notes were recovered.Justice Varma was not in Delhi for any kind of comments at that time.Once he was a contacted ,he immediately denied his involvement in that incident rather he alleged that it was a conspiracy to tarnish his image.The Chief Justice Of India constituted a high powered committe ,consisting of two Chief Justices of High Courts and one sitting judge of a High Court.to enquire the alleged recovery of money.The Supreme Court Collegium recommended his immediate  transfer to Allahabad High Court ,which triggered a hugh protest initiated by Allahabad Bar Association against that transfer,that Allahabad  High Court is not a dumping ground for corrupt Judges.The Union Government notified his transfer.The Allahabad High Court is one of the oldest as well as a highly respected High Court.The Allahabad High Court was established in 1866 by a Royal Charter of Her Majesty  Queen Victoria.The Union Home minister said that a First Information Report cannot be filed against a sitting High Court Judge without Chief Justice Of India's nod.The Honourable Supreme Court in K Veeraswamy v Union of India (SCR(3) 189 ,1991,,held that Chief Justice of India's approval is required before filing a FIR against a sitting judge.Now the fate of Justice Yashwanta Varma is hanging on balance.If Enquiry Committee finds a prima facie case against him,he will be prosecuted under the Prevention Of Corruption act,1988 and He will also be impeached under the Article 214 of the Constitution ,However the procedure prescribed under the Judges Enquiry Act,1968 shall be followed.

On 29th March 2025,a special Central Bureau of Investigation (CBI) Court acquitted a former Judge of Punjab and Haryana High Court Justice Nirmal Yadav in the recovery of cash at Judge's door step scam,which occured in 2008.Justices Nirmal Yadav and Nirmaljit Kaur were the Judges of Punjab and Haryana High Court.One Assistant of then the Additional Advocate General came to the resident of Justice Nirmaljit Kaur with a bag and handed over that bag to Peon of Justice Nirmaljit Kaur and told him to give that bag to Justice Kaur.When the bag was opened,there were Rs.Fifteen Lakhs (15 lakh) cash.The assistant  was immediately apprehended and handed over to police .After interrogation ,the police found that the cash was actually for Justice Nirmal Yadav as a payback for favourable judgement in Panchkula property dispute.The Assistant of Additional Advocate General mistakenly gave that money to Justice Nirmaljit kaur since both judges were women .Justice Yadav went on leave after that incident and later she was transferred to Uttrakhand High Court.That case was handed over to CBI and then Chief Justice of India gave his nod and President also accorded sanction to prosecute her.An internal panel of Supreme Court found innocence of Justice Nirmaljit Kaur and she retired in 2021.Irrespective of CBI Court's judgment ,this episode shall remain a bolt on Judiciary's image incorruptible institution .Such incident always hurt people's perception on Judiciary as an institution of People's last hope to get justice .

Justice Saumitrya Sen ,a former judge of Calcutta High Court was impeached by the Rajya Sabha by a thumping majority in 2013,and he preferred to resign before facing impeachment motion in Lok Sabha.Had he not resigned ,he would have been the first sitting judge of a High Court ,who was impeached according to the Constitutional Provision .Justice V Ramaswamy was the first sitting judge of the Supreme Court ,against whom an impeachment motion was initiated in Lok Sabha in May 1993.Though that motion failed due to abstentions by the  rulling party.

Recovery of crores of burnt in official resident,though in a store room ,separated from main campus is a serious  issue and the Supreme Court has taken cognizance of the matter and in an  unprecedented move ,the web site of Supreme Court is showing the burnt notes.After this recovery ,the Chairman of Rajya Sabha told that it could have been avoided,had the Supreme Court not struck down the NJAC (National Judicial Appointed Commission ) in 2015.A noted Constitutional expert K K Venugopal called for reconsideration of NJAC judgment ,pronounced in 2015,he quoted some portions of Justice Chelameswar'r dissenting judgment which upheld NJAC as constitutional .

Now the real issue is does India need a National Judicial Appointment Commission or a National Judical Accountability Commission.Let's discuss the Constitutional Provisions on the appointment procedure of the  Supreme Court and the High Courts

Article 124.Establishment and Constitution of Supreme Court -(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and until Parliament by law prescribes a larger number ,of not more than seven other judges.

(2) Every judge of Supreme Court shall be appointed by the President by warrant under his hand and seal and shalk gold office until he attains the age if Sixty -Five years of age.

(4) A Judge of the Supreme Court Of India shall not be removed from his ofdice except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House oresent and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity .

Article 214.High Court for States--There shall be a High Court for each State.

Article 217.Appointment and Conditions of the office of a Judge of a High Court (1) Every judge of a High Court shall be appointed by the President by warrant under his hand and seal and shall hold office in the case of an additional Judge or acting judge,as provided in Article 224,and in any other case ,unril he attains the age of sixty -two years.

(b) a Judge may be removed from hisofdice by the President in the manner provided in clause (4) of Aeticle 124 for removal of a Judge of the Suoreme Court.

The Supreme Court came into being on 26th January 1950 as the result of the enforcement of the Constitution of India.The precursor the Supreme Court was federal Court,created under the Government Of India Act 1935,and even after independence the Federal Court continued its role as the highest court of the Country.H L Kania was the first Chief Justice of the Dominion of India after independence and he again became the Chief Justice of the Republic of India on 26th January 1950.The federal Court had only two Judges,the CJI H L Kania and Fazal Ali,so together they two constitued the Federal Court.Then Prime Minister of India  Pandit Jawaharlal Neheru was not keen to appoint CJI HL Kania of Federal Court as the First Chief Justice of Supreme Court.The Law Secretary was keen to appoint M C Setelvad as the Federal Court Judge.He was requested to become the first CJI of Independent India,but he turned down owing to his face.Pandit Jawaharlal Neheru was a major obstacle to HL Kania's appointment as the First CJI.HL Kania made some adverse comment on Justice Bashir Ahmed ,an additional Judge of Madras High Court whose name was proposed to be made a permanent judge,Bashir Ahmed was a Muslim and HL Kania questioned his credentials ,Pandit Neheru was extremely upset and he wrote a letter to HL Kania calling his comments as unjudicial .However then Home Minster Sardar Patel's pragmatism had played a decisive role in settling the differences .In response to Neheru's letter Sardar Patel directed the Home Secretary to confirm his appointment as the permanent judge.

So the differences between the first Prime Minister of India and first Chief Justice of India had taken place not of any conflict of intetest but on cherished value of secularism,Pandit Neheru,a diehard secular was unable to accept some communal comments against a Muslim Judge,and his disapproval of such remarks was acceptable and justified.

H L Kania was succeeded by Patanjali Shastri,M C Mahajan ,Mukerjea,S R Das, B P Sinha ,P B Gajendragadkar and A K Sarkar ,and both the Executive controlled parliament and Judiciary had a cordial relationship.The Supreme upheld the Constitutional amendments that had curtailed fundamental right to property in two major Judgments,namely Shankari Prasad V Union of India (1951) and Sajjan Singh v Union of India (1965). A K Gopalan v State of Madras (1950) was a landmark judgment which was rightly been held as the high water mark of legal positivism in India.All the higher judicial appointments of Supreme Court and High Courts were made by following the consultative process between Chief Justice of India, Senior most judges and Government represented by Law Minister.

 Koka Subba Rao became the Ninth Chief Justice of India in 1966,and he was known as the dissenter of dissenters.He already delivered one of the greatest dissenting Judgment in 1962 in the fanous case of Kharak Singh v State of Uttar Pradesh where he gave a wider interpretation of Article 21 by holding the Right to Privacy as part of Article 21.During his tenure as the CJI ,the calender year of 1967 became a watershed year in the Constitutional history of India.A Eleven Judge bench was constituted to hear the challege to 17th amendment act as being violative of fundamental rights ,and the majority judgment authored by K Subba Rao held that after pronouncement of Judgment ,the Parliamentary wouldn't curtail the fundamental rights.The five judges dissented.This Judgment was decided on 27th February 1967.That judgment had created a major uproar in political arena ,especially the socialist blocks called for constitutional amendment to nullify its effect.

In 1970 ,the Supreme Court struck down the Bank Nationalization Act being violative of Article 14 of the Constitution .An Eleven Judge bench was constituted to hear the challenge the Bank Nationalization Act(R C Cooper v Union Of India 1970)and 10 judges out of 11 ruled in favour of RC Cooper ,only one Judge Justice A N Ray dissented.

In 1971,the Supreme Court gave another huge blow to the Union Government by striking down the Privy purse abolishment,the Supreme Court directed the Government to amend the constitution.An Eleven judge bench was constitued ,and Justices A N Ray and G K Mitter pronounced dissenting verdicts.

In 1973 ,the Kesavananda Bharati case changed the constitutional as well as political map of India.A thirteen Judge bench was constituted to hear the challenge  various amendments including the 24th amendment which was introduced to nullify Golak Nath ruling,and 7 judges held that the amending power would be exercised to destroy the basic and fundamental features of the Constitution .Nine Judges signed the summary of the Judgment and four judges did not sign.Justices A N Ray,K K Mathew,MH Beg and S N Dwivedi didn't sign the summary judgment .At that time Congress Party was in Power and Indira Gandhi was the Prime Minister,who always resented an assertive and activist judiciary or judicial activism.Like all politicians ,she also expect a submissive judiciary to toe the line of political party in power.And Government attitude became quite clear in 1973 after retirement of then Chief Justice S M Sikri.The President of India appointed Justice A N Ray as the next CJI by superseding three  senior most judges .He was the same A N Ray ,who pronounced favourable judgements in the  Bank Nationalization case,Privy purse case and Kesavananda Bharati case.The three judges who were superseded delivered judgments against the Government by holding the fundamental features were beyond the amending power of Parliament .The judges were Shelat,Grover and Hegde,and they resigned in protest.That supersession was an unprecedented nove and irrespective of Government justification ,that was the first attack on Judicial independence in India.

On 25th June 1975,the President of India proclaimed emergency under Article 352 of the Constitution and the main reason was the disqualification of then Prime Minister by Justice Jagmohanlal Sinha of Allahabad High Court.Indira Gandhi appealed to the Supreme Court and vacation Judge Justice K Iyer refused to grant permanent stay of Allahabad High Court's ruling.Though Justice Krishna Iyer didbot disqualify her but he didn't allow Indira Gandhi to take part in parliamentary proceeding pending the appeal .So Indira Gandhi misused the power to protect her chair

Emergency that lasted for more than 2years was the darkest chapter in modern Indian history,most opposition leaderes were detained under the Preventive Detention law (MISA 1971,The Maintenance of Internal Security Act) and the Supreme Court failed miserably to protect basic human rights of detainees.The Habeas Corpus Judgment ,pronounced un 1975 was the worst judgment in our history,where foir judges ,CJI A N Ray,Justices P N Bhagwati,Y V Chandrachud and MH Beg toed the line of Government ,conceded that during emergency  President of India could suspend all fundamental rights including Right to life.During that period the Supreme Court became a subservient institution.When everyone expected from judiciary to stand up against an omnipotent executive,as the ultimate defender of Constitutional values,unfortunately Supreme Court had badly let us down.But even during darkest hour Justice H R Khanna delivered the greatest dissenting judgment of all time .Justice H R Khanna's brave dissent had cost his chair.The President didn't appoint him as the Next CJI after retirement of A N Ray and instead M H Beg was appointed as the CJI.Justice Khanna was punished for his refusal to surrender before the Govt and he preferred to resign in protest .

During Emergency though the Supreme Court failed to protect the constitutional values ,but some brave Judges of several High Courts zealously protected fundamental rights of Citizens and the Government decided to punish them by transferring from their respective  High Courts to others.The Government prepared a list of such 56 High Court Judges,who delivered judgments against the Govt and 14 such judges were transferred .The Government in order to shake their nerves deliberately leaked the names of other judges.Justice S Seth of Gujrat High Court judge whose name was leaked ,challenged that arbitrary transfer before Supreme Court.A five judge bench was constituted to hear the matter where the respondents were Union Of India and the CJI ,since his concurrence was required.The main issuee were, whether a High Court judge be transferred without his consent,Did the Article 222(1) require a precondition of consent of the judge and what did the word consultation mean.The Supreme Court ruled that consultation mean full and final consultation and in order to maintain Jidicial independence a transfer without Judge's consent was held as unconstitutional .So the Government failed to rein the judiciary by way of transfer.Though the Government failed,it did not mean that a democratically elected Government would never abuse its power,it woluld never be a tyrannical form of government .There is no guarantee that Govt Government would never abuse its power.

Probably the decade of Seventy was the both the best and worst year as far as Judiciary was concerned.The best was the Basic Structure Doctrine and worst was the Habeas corpus case.The Judiciary had to face an omnipotent executive that was hell bent on destroying Judicial independence .Ultimately such blatant attack on Judiciary led to the establishment of the Collegium system in India.The Collegium system came into being mainly because of Supreme Court's judgments,that began from( S P Gupta v Union of India 1981 rulling) ,popularly known as first Judge's case.Though the Seven Judge bench ruled that President was not bound by recommendations of the Chief Justice and other senior most judges in the matter of appointment of Judges,but only in exceptional cases President should overrule,and it must not be arbitrary ,but it was the beginning towards the Collegium system.

The next important judgment came in 1993,known as Second Judge's case ,which created Collegium system consisting of the Chief Justice of India and two Senior most judges,though primacy was given to the Chief Justice of India. Again in 1998 ,in a Presidential re reference under Article 143 of the Constitution ,Supreme Court enlarged the collegium system consisting of the Chief Justice and four senior most judges,as the final authority in appointment and transfer of Judges of Supreme Court and High Courts.

In 2014 ,the NDA Government came to power with absolute majority since 1984 general election .Narendra Modi led Government introduced the Constitution Ninety Ninth Amendment Act (99the amendment act) that created the National Judicial Appointment Commission  consisting of the Chief Justice of India ,two senior most judges ,the Law minister and two eminent persons.So the NJAC was consisted of 6 members ,where both Judiciary and executive had equal voices ,but any two members could veto.So that was highly objectionable and the Supreme Court had struck down the 99th amendment as unconstitutional for being violative of Judicial independence .So Government's  attempt to overcome the collegium system failed.

In recent time ,we have seen that several recommendations of the collegium system are pending before the government .The Government adopted either delatory tactics or being selective in confirming resolutions of the Supreme Court .During the tenure of D Y Chandrachud ,the Government cleared all the 17 rcommendations to the Supreme court and out of 186 recommendations to various High Courts ,the government cleared 142 names or their names were notified.

In january 2018,the Collegium recommended that then Chief Justice of Uttarakhand High Court be elevated to Supreme Court along with Indu Malhotra.But then Union Law Minister wrote a letter to then CJI and raised some objections to his elevation on the ground that he was in number 42 in High Court's Seniority list so he requested the collegium to reconsider his name.But the collegium reiterated its stand again July and Government reluctantly appointed him as the Supreme Court Judge in October 2018. The real reason of Government's objection was not his seniority ,but K M Joseph while serving as the Chief Justice of Uttarakhand High Court restored the Harish Rawat Government when Governor had arbitrarily exercised his powers to dismiss Harish Rawt's Government .The political defection was encouraged by the centre.So K M Joseph became bete noire of the union government .K M Joseph retired on 16june 2023,and his name will go down in history as one of the greatest judge of Supreme Court.Another great judge was  Justice Akil Kureshi ,who was never elevated ro the Supreme Court.Justice S Murulidhar was transferred on the night of 26th February 2020,and his midnight gave many speculations,though his transfer was recommended by the Collegium on 12th February 2020.Now the big question is why did President become so active to notify his tranfer in midnight.The Delhi was shaken by communal riots and Hustice S Murulidhar criticised police inaction .This was the real  reason,his criticism had surely embarrased the Government.

So at this juncture ,the review of NJAC judgment is beyond any debates  or discussions.No system is perfect.we have no alternative, that we can discard it ,but to accept the collegium system despite its many flaws.The academicians Jurists,Lawyers former judges can make suggestions  to make collegium system more transparent and accountable.