Judiciary is the watchdog of the Constitution, its values and morality. Also of the Parliament and the Executive. Judges have to reason out truth from falsehood. Judiciary is also manned by human beings. As also the other two organs. The role of judiciary is different. Therefore, the judicial human fabric matters the most. Its strength strengthens the other two organs. Consequently, the whole nation.
We have career judges. We have lawyer judges. We do not have jurist judges. But we do have judge jurists. From Mukherjea to Chandrachud (Jr.), many have contributed richly to the growth and development of constitutional jurisprudence through their judgments. The rich contribution of Indian Supreme Court as also of Indian judges is well known and recognised in different parts of the globe.
A conflict had arisen between the UP Legislative Assembly and the Allahabad High Court. The President of India made a reference to the SC under Article 143 for its opinion in 1964. The matter came up before a bench of seven judges. The SC pronounced its opinion. In short, the writ petition could be entertained under Article 32 or 226. The judicial review could be exercised. The legislature was not immune from the jurisdiction of the constitutional courts.
This was applauded by the public at large. The opinion of the Supreme Court seems to have been sent to the senior judges in England and the United States by Prime Minister Lal Bahadur Shastri. The then Chief Justice of India, P.B.Gajendragadkar received a letter from Lord Denning praising the opinion. Similar compliments were received from Earl Warren, the Chief Justice of Supreme Court of United States. It must be applauded that the then Prime Minister had the courage to demonstrate to the other advanced countries, the role that the Indian Judiciary had played in a Constitutional Parliamentary Democracy. This happened when the Indian Constitution was only 14 years old. We have come a long way in the last almost 50 years. Indian Judiciary holds a pride of place in the committee of nations. The basic structure concept and doing of complete justice have become exportable items for other growing democracies.
The appointment of Judges to the Supreme Court and the High Courts has been an issue of serious concern. I would like to share some anecdotes from the autobiography of Chief justice P.B.Gajendragadkar: To The Best of My Memory. He was elevated as a Judge of the Supreme Court in January 1957. He was keen that on the bench of the Supreme Court, there should be a judge directly from the Bar. He talked to the chief justice and other judges. It took sometime. Chief Justice B.P.Sinha liked the suggestion. Attempts were made to persuade H.M.Seervai, Nani Palkhivala and Lal Narayan from Patna. They all refused. The idea was not dropped. Gajendragadkar suggested to Sinha the name of S.M.Sikri, advocate general, Punjab. A message was sent to Sikri to meet Sinha at his residence. Gajendragadkar was also present. Sikri did not know why he had been called. He was told to join them on the Bench.
Sikri responded: 0No, Chief Justice, I don’t think I would be able to do the work of a Supreme Court Judge.” Sinha told him, we have decided to recommend your name. We will not take ‘no’ from you. This is how, Sikri became a Judge of the Supreme Court, and then the CJI.
In February, 1964, Gajendragadkar had becomes CJI. He wanted to elevate Justice R.S.Bachawat of Calcutta High Court after full consideration. Gajendragadkar had never met him. Bachawat read the announcement about his elevation in the newspaper. He came to Delhi to meet CJI who was reading the newspaper. He said, “Can I meet the chief justice?”The chief justice said, “Yes, I am the chief justice. Who are you?”
The issue of elevation to the Supreme Court is sensitive. Chief Justice Gajendragadkar has shared another instance. On a Saturday morning, the Chief Justice of a High Court called on him. He talked about the working of his High Court. Then he suggested that he l be considered for elevation to the Supreme Court. He also started comparing his own merits with those of others. At this stage, he was stopped. He was told, do you realise, you have done something unworthy of the position you are holding. You are canvassing. Yet, he was assured that this conversation would not be held against him. The judge did not reach the Supreme Court. This level of objectivity is possible only in the domain of judiciary. Not in the political and executive wings of the state.
The question is, why judges appoint judges ? The answer is twofold. Every other appointment, Including the appointment of CDS, COAS and other Army Generals, is made by their own peers. Secondly, the objectivity possible in Judiciary is not possible elsewhere. Moreover, the government is itself the largest litigant. The Public Interest and National Interest are paramount. This is the reason, why such matters go before Constitutional Benches of five, seven and nine Judges.
It’s a matter of great pride that India has the Presidency of G20. Globally, the image of India has touched new heights. But let us not forget the contribution of the Indian judiciary to it. Our Constitutional Democracy is providing the leadership to other democracies.
(The writer is Professor Emeritus and former director of NJA)