The Government's move to establish a Judicial Commission is to be applauded. My hope is that the commission, in addition to looking at the judicial appointments, shall also make the procedure for judges’ impeachment simpler
Most, if not all, of the population would be able to remember the name of India’s first Prime Minister. A smaller proportion may even be able to recall the name of the first President. And even a smaller proportion would be able to name the first Chief Justice of India. No, it was not Harilal Jekisundas Kania, who became the first Chief Justice following independence. It may come as a surprise to some that the British had a Chief Justice way back in 1773 at the Supreme Court of Judicature at Fort William. His name was Elijah Impey and he is in the annals of infamy for his unpalatable role in the trail and hanging of Maharaja Nandakumar in 1775.
For those who are not conversant with the details, the Maharaja was the collector of Burdwan and Hooghly districts following Warren Hastings departure to England. Very soon, Hastings was sent back to India as the first Governor-General of India and Maharaja Nandakumar had the temerity to level charges of serious corruption against him in support of which, he produced reams of proof. What he had not contended was that along with Hastings, the British had also appointed his closest friend right from his school days at Westminster school as India’s first Chief Justice. The two of them used to socialise every evening and were drinking companions. Unsurprisingly, Elijah Impey dismissed all of Nandakumar’s accusations and encouraged him to level counter-charges which he did. The learned Chief Justice in a trial that lasted for 20 minutes, pronounced Nandakumar guilty and declared the death sentence. In the statute that existed at the time, a native who was found guilty of cheating the masters, could be sentenced to death.
It was not just Indians who revolted against this judicial blasphemy. Edmund Burke and Tom Macaulay, otherwise as quintessentially British as imaginable, described this as ‘judicial murder’, and both were put up for impeachment which, in any case was a farce as an Indian life was considered super-expendible. Even an unsavoury whitewashing by Sir James Fitzjames Stephen (who later authored India’s Evidence Act) could not erase the infamy that had been visited upon the judicial process and consequently, the British system of justice which throughout the period of the British rule, remained in the proverbial doghouse as far as the natives were concerned. The reason I am re-visiting the event is to emphasise that confidence in the judiciary, once eroded, becomes very difficult, if not impossible, to restore. And that makes for a disharmonious society.
The judiciary of independent India, headed by the Supreme Court, was one institution that enjoyed a degree of complete confidence — and such was the confidence that even a judgement like inAdditional District Magistrate Jabalpur versus Shivakant Shukla case, which must rank alongside Dred Scott as the worst ever in the history of democratic societies anywhere, did not erode the faith that an ‘aam aadmi’ had in the institution of judiciary in particular, the Supreme Court. In the last two decades, we noticed a very worrying signal — this faith in the judiciary was steadily being put to test. And one of the major reasons for that was the almost complete opacity that shrouds judicial deliberations, particularly in terms of judicial appointments to the higher judiciary.
My own generation would recall how blatantly, the Prime Minister of the day in the 70s, superceded three senior-most judges of the Supreme Court because they were not playing her tune. In the Additional District Magistrate Jabalpur versus Shivakant Shukla case I had mentioned, which led to the abrogation of the most fundamental right of habeas corpus, the Supreme Court miserably failed the entire country. Except a valiant and a distinguished judge, Hans Raj Khanna (who deserved a Bharat Ratna in his life-time), all the other judges played to the Government’s tune. Justice Beg in a concurring note went to the ridiculous extent of extolling the wonderful treatment meted out to the Maintenance of Internal Security Act-detained prisoners as ‘maternal’. Chief Justice Ajit Nath Ray retired soon, and Justice Hans Raj Khanna, next in line was superceded — no prizes for guessing who succeeded Ray.
While this monstrosity took place during the Emergency, the process of selecting judges was entirely left to the executive in those days. One the Emergency was lifted, there were several discussions on the radical overhaul of this process but again, it took more than a decade for the present collegium system to be set up. This certainly, was an improvement but there have been some disquieting observations made by learned jurists. We had noticed, for instance, a case of a judge in a trial court who had pronounced acquittal of a powerful politician’s son being elevated to the higher judiciary the very next day. Even the Chief Justice was constrained to express concern on the judgement although he did not comment on the merit of the appointment. The High Court where this judge was a sitting member, in a departure from the usual practice, decided to take up this matter suo motu and the learned judges reversed the judgement observing that the judge (now a member of their own High Court) had relied on logic that was ‘immature and unsustainable.’
The present Government’s move to establish a Judicial Commission is to be applauded — it was long overdue. Being a judge’s son myself, I am fiercely protective about the institution of judiciary. My sincere hope is that the commission, in addition to looking at the judicial appointments, shall also make the procedure for judicial impeachment simpler and fairer.