What goes around, comes around. Two interesting things happened earlier this month, both concerning the Supreme Court. Starting February 6, Chief Justice Dipak Misra appeared to offer a truce in the stand off with his four most senior colleagues when, as “Master of the Roster’, he set up a new system of allocating cases by subject to different benches. 

It was also announced that Chief Justice Misra would take up all public interest litigation (PILs) and letter petitions from citizens. This followed the January 12 press conference called by Justices Chelameswar, Gogoi, Lokur and Joseph. We don’t know if this will lower temperatures in the Supreme Court, because the four Judges appeared to be also upset over CJ Misra’s allocation of sensitive cases. 

This sort of schism is not new. Nor is its public airing ‘unprecedented’ as the media reported. Going through my archives, I found a report I wrote on an October 29, 1982 speech by Justice V.D. Tulzapurkar in Pune in which he launched a blistering attack on fellow Supreme Court judge P.N. Bhagwati (without once naming him). Bhagwati had come to personify a (then) new, activist court that enthusiastically took up PILs and pushed the boundaries on a socially conscious, less doctrinaire jurisprudence.  

Later in February came news that the government had refused to endorse the elevation of Uttarakhand Chief Justice KM Joseph to the Supreme Court; this was recommended by the collegium comprising of the CJI and the same four rebellious senior judges. In April 2016, a bench headed by Justice Joseph had overturned the centre’s imposition of President’s Rule in Uttarakhand. This is not the first time the senior judiciary and the government are butting heads. Dozens of High Court and six SC seats — a fifth of the total — are vacant, a casualty of this ping-pong power game.  

Between the lines of these disagreements is a deeper struggle between parliament’s power to enact laws and the judiciary’s duty to protect the citizen’s fundamental rights. Re-reading some of my old reports on the judiciary, I am struck by how our most exalted institution, the defender of the Constitution, has come under such frequent attack, both from outside and from within its own ranks. One would expect the Supreme Court in particular to be inviolate and fixed in its purpose of delivering justice to the common citizen. But that is not a given.  

The Supreme Court now frequently rules on a multitude of governance issues that may not strictly be construed as interpretation of the Constitution. Much of this activism can be traced to Justice Bhagwati’s relatively long 14-year Supreme Court tenure.  

Tulzapurkar told me that his Pune speech was an exercise in introspection: “Public and professional opinion should exert (themselves). Otherwise, how do you control judges? If you arouse public opinion, it will go a long way” He also reiterated his criticism of Bhagwati’s ‘supervisory tendencies’: “We are not legislators. There are common law restrictions on us. How long can supervision go on? Should the Supreme Court run every institution in the country?”  

These words were spoken more than 35 years ago, but they found an echo last November 26, Constitution Day, when Law Minister Ravi Shankar Prasad said “The founding fathers of the Constitution clearly wanted (that) governance must be left in the realm of those elected to govern by the people of India.”  

You could argue that legislative excess does need judicial checks. Prasad made a reference to the Supreme Court’s landmark 7:6 judgment in the 1973 Kesavananda Bharati case which said parliament could amend the Constitution so long as it did not affect its basic structure. “Independence of the judiciary basic structure (sic) cannot be invoked in a manner to make other basic structures ir- relevant. That is happening in certain cases,” our law minister said. 

Justice H.R. Khanna, whose judgment tilted the scales in Kesavananda, told me in March 1980 that Parliament’s power to amend was plenary (subject to prescribed processes): “While drafting the Constitution, we cannot expect its framers to have gone into the minutest details. The generality of the Constitution helps in the growth of the Constitution.”  

Many of us forget that Indira Gandhi lit the fuse on executive caprice in judicial appointments when she named Justice A.N. Ray chief justice of India in April 1973, superseding three senior judges who had ruled against the government in Kesavananda and forcing them to resign. In January 1977 Justice Khanna was himself passed over for the chief justice’s post for being the lone dissenter in the Supreme Court’s infamous Habeas Corpus ruling during the Emergency. He, too, resigned.  

The executive’s appetite to influence judges’ appointments has only been whetted over the years. The Modi government wasted no time when it came to power. Via the 121st Amendment in August 2014, it set up a supposedly independent National Judicial Appointments Commission (NJAC), which would have included, besides the CJI and two senior-most Supreme Court judges, the law minister, two ’eminent persons’ nominated by the prime minister, and the leader of the opposition. The legislation was overturned by the Supreme Court in October 2015. Several recommendations have been made over the years that the collegium system, set up in 1993, ought to be reformed. All have been resisted by the Supreme Court. India is alone among major democracies in having an unelected body (the Supreme Court) nominate itself.  

In his November speech Prasad referred to Justice C.S. Karnan, the first sitting High Court judge to be sentenced to six months’ imprisonment by the Supreme Court for contempt last year after he alleged nepotism and corruption in the higher judiciary. 

Prasad, using this aberrant case as his argument, said it underlined the need for greater scrutiny of candidates for judgeships, and for a bigger talent pool. He made a renewed pitch for the extinct NJAC.  

These tensions seem to dissipate when it comes to judges’ lives after retirement. I believe the retirement age for our judges (65 for Supreme Court judges, 62 for High Court judges) is too early. Judges are forced off the Bench when they are at the height of their experience and intellectual abilities. This leads to Chief Justices occupying their posts for absurdly short periods – like Justice J.C. Shah (35 days in 1971) and Justice K.N. Singh (17 days in 1991). Judges are also paid too little. It took 36 years after the constitution came into force for the first revision in judges’ salaries – the CJI’s salary doubled from ₹5,000 to ₹10,000 a month in 1986. Salaries were revised again in 1996 and 2009. Last month the CJI’s salary (not counting the perks) went up to ₹2.8 lakhs a month – a tiny fraction of what a top SC lawyer makes.  

Hard-pressed retired judges, barred from practising, are forced to seek all kinds of posts (some would call them sinecures) at the head of commissions and tribunals. Many take up arbitration, which can be lucrative. In a controversial decision, the current government appointed former Chief Justice P Sathasivam the governor of Kerala just five months after he stepped down.  

The struggle over jurisdictional limits will continue. Prime Minister Narendra Modi, in his Constitution Day speech, quoted Ambedkar as saying: “The objective of the Constitution is not only limited to creation of three organs of the Union but also to define the limits of their powers. And it is also essential because if the limits are not defined the institutions will become autocratic and start exploitation. Therefore, the legislature should be free to enact any law, the executive should be free to take any decision and the Supreme Court should be free to interpret the laws.” In law, they call this kind of warning a caveat. 

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