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From Bar to Bench to Bar

Justice Tirath Singh Thakur superannuated on 3 January 2017. Some would term his tenure as the 43rd Chief Justice of India (CJI) tumultuous. The apex court and the union government’s relations were quite uneasy during the period. Despite various flashpoints though, the outgoing CJI’s lasting legacy is the emphatic rejection of the National Judicial Appointments Commission (NJAC). Much has already been said about the suitability of the apex court’s judgment in Supreme Court Advocates on Record Association v Union of India (hereafter, the “NJAC judgment”).

Justice Tirath Singh Thakur superannuated on 3 January 2017. Some would term his tenure as the 43rd Chief Justice of India (CJI) tumultuous. The apex court and the union government’s relations were quite uneasy during the period. Despite various flashpoints though, the outgoing CJI’s lasting legacy is the emphatic rejection of the National Judicial Appointments Commission (NJAC). Much has already been said about the suitability of the apex court’s judgment in Supreme Court Advocates on Record Association v Union of India (hereafter, the “NJAC judgment”). What merits a second thought though is an aspiration floated by the outgoing CJI.

Recounting his days as a young lawyer at the High Court of Jammu and Kashmir, Justice Thakur suggested amending the Constitution to remove injunctions against retiring justices rejoining the bar. To quote him, “[m]ost of us are at heart lawyers, you may become judges, but eventually when you introspect, reevaluate and reassess, you realise you are a lawyer at heart.” Articles 124 and 220 of the Constitution, in no uncertain terms, prohibit former Supreme Court judges and former “permanent judges” of state high courts from pleading before the benches that they occupied and any lower court or other authority in India, respectively.

In the NJAC judgment, the Court echoed its earlier stance sustaining the primacy of the CJI (and through him, the collegium) in appointing and transferring judges of the higher judiciary. The ardour with which “inter-institutional equilibrium” was trumped by “institutional independence” occasioned a near total exclusion of other state organs. In such a context, Justice Thakur’s plea deserves exacting scrutiny. The judiciary’s precious independence is necessary to preserve and cultivate. If retiring judges of the higher judiciary can join the bar after they superannuate, it would dismantle the very concept of “functional independence” which K M Munshi stressed while discussing the draft of Article 102-A in the Constituent Assembly. In the words of Granville Austin, “[t]he question was how to render the fortress impregnable to sapping by private interests.” In a scenario where the CJI selects his brother judges, one would be hard-pressed to justify Justice Thakur’s appeal to amend the Constitution.

In the Constituent Assembly debates and the Constitution that resulted, an effort can be noticed to cocoon the judiciary against any political pressures that may erode its legitimacy. Since the ignominious experience of the 1970s, the higher judiciary has insulated itself further, becoming a functional island; an imperium in imperio. Consequently, for such an institution’s members to join the bar would be anomalous. It would undoubtedly create internal pressures, an unorthodoxy for which there exists no safeguards.

In a democracy, the confidence of the citizenry in the judicial set-up rests upon its impartiality, fairness and accessibility. It has often been remarked that “justice must not only be done but should manifestly and undoubtedly be seen to be done.” This warrants resolute confidence in those occupying the highest echelons of our judicial set-up. Therefore, if the state of affairs betrays a predisposition on part of the adjudicating authority, that would erode the faith that a truly independent judiciary commands. It is illustrative to note that as of January 2017, of the 23 sitting judges in the Supreme Court, five were appointed by the collegium headed by Justice Thakur as CJI. Moreover, with the sanctioned strength being 31, there is every chance that the vacancies would be filled during the term of the incumbent CJI. Would this not stoke the fire of doubt?

Ivan and Akshat Bajpai

kolkata

Updated On : 4th Aug, 2017

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