Date:18/12/2002 URL: http://www.thehindu.com/2002/12/18/stories/2002121803631200.htm

Opinion - News Analysis

The tenure of CJs

By Inder Malhotra

With the swearing in of V.N. Khare on Thursday, India would have had as many as four Chief Justices of the Supreme Court in the calendar year that is coming to a close. Contrast this with the fact that the total number of CJs of the Supreme Court of the United States over 226 years adds up to 11. For less than a fourth of that period, the corresponding Indian figure is 34.

Under the circumstances is it any surprise that of the three Chief Justices who retired during 2002, one served for just six weeks? In another case, a part of the CJ's eight-month tenure overlapped with the apex court's summer vacation. Indeed, given the fact that Y.V. Chandrachud was Chief Justice of India for more than seven years, P.B. Gajendragadkar for three years and some others had tenures of two years plus, the terms of other CJIs have been ludicrously short, in one famous case lasting precisely 18 days.

Clearly this state of affairs is unsatisfactory to the point of being crazy. What stability in the working of the highest judiciary, vital for any kind of judicial reforms, can there be if CJs come and go almost like frequent fliers changing planes at busy airports? But then one of the least guarded secrets of the Capital is that those wielding political power have so manipulated the system as to ensure that there is no stability in any institution except the "incumbent leadership of every political party". Aficionados of Yes, Minister are bound to remember Sir Humphrey Appleby's sound dictum that "permanence is power, (quick) rotation is impotence".

Evidently, the political masters of this ancient land have not only taken this lesson to heart, but also managed, as far as humanly possible, to monopolise permanence for themselves. Rotation is the fate of all others. In all fairness, it must be added that in the case of the highest judiciary, the inflexible insistence on the promotion of the most senior judge to the top judicial post had resulted from the nationwide uproar against Indira Gandhi's motivated supersession of Supreme Court judges. This she did, not once but twice, first in 1973 and then in January 1977, barely 10 days after she had called fresh elections.

By now, however, this safeguard has become a classic case of the remedy being worse than the disease. Moreover, judging by some of the scandals allegedly involving judges in Punjab and Karnataka, for instance, it is clear that overwhelming emphasis on seniority has by no means prevented deterioration in judicial appointments or judicial conduct. Further comment on the cases currently in the public's eye must wait until the "in-house" investigations, initiated by the outgoing CJI, G.B. Pattanaik, are completed.

The nation's main worry is that since similar or even worse lapses in the past were never handled strictly or effectively enough, there is no guarantee that things would be different this time around.

One has to mention the shocking case of V. Ramaswami, the only judge of the Supreme Court so far to face impeachment proceedings, to drive home the point. It was on the recommendation of his father-in-law, Veeraswami Naidu, then Chief Justice of the Madras High court, endorsed by the State Government and accepted by the Indira Gandhi Government in Delhi, that Mr. Ramaswami was elevated to the apex court. His performance led to the completion of all impeachment proceedings except the final stage of voting by Parliament. Under pressure from his party, the then Prime Minister, P.V. Narasimha Rao, agreed not to issue a whip but to allow Congress (I) MPs to vote as they liked. This was the end of the matter, except that by that time the President had had to cut his father-in-law's pension because of a CBI case against the elder justice!

To revert to the agonising problem of CJIs retiring after woefully short terms, the remedy is easy. The U.S. ensures long terms to its chief justices for the excellent reason that it wants them to know first hand the consequences of their judgments. Unlike America, this country might not be in a position to let CJIs serve for life or until they feel that they should retire voluntarily. But, surely, the retirement age for Supreme Court judges can be raised to 70 and the elevation to its Bench so regulated that anyone rising to the position of CJI serves for a minimum of three years.

Alternatively, the same result can be achieved by following the example of the Army that has laid down that any Lieutenant-General not having two years' service to his credit must not be considered for appointment as GOC-in-C of Army Commands. Those thus passed over decide for themselves whether to go on serving in their old positions or to seek premature retirement.

Of all the institutions of the republic, the judiciary is still the most respected and relied upon by the Indian people. Despite its undoubted flaws and deficiencies, it is still much better and trustworthy than the executive or the legislature. This state of affairs has to be improved, not allowed to deteriorate.