Brief points made by Shri Arun Jaitley at the Conference of the Legal Cell

Strengthening Judicial Independence

A brief of the points made by Shri Arun Jaitley, Leader of Opposition, (Rajya Sabha) at the Conference of the Legal Cell of BJP on 30-9-2012

Yesterday, on September, 2012, the Legal Cell of the Bharatiya Janata Party had organized a lawyers Convention at Talkatora Stadium.  I had made a detailed speech on several aspects of judicial reforms.  I had also referred to certain current issues such as the Supreme Court opinion in the Presidential reference on the alienation of natural resources and the Government’s decision to introduce FDI in retail.  The comments in relation to strengthening judicial independence must be understood in the correct context.

The BJP is fully committed to an independent, impartial and a strong judiciary.  Our resolve   has been strengthened by the experience of the past sixty five years where we had an opportunity to analyse the strengths and failings of the institution.  The strengths have to be preserved, the failings have to be remedied.  Analyzing the failings and suggesting remedies is not ‘slamming’ the judiciary; it is strengthening the judiciary.

When the Indian judiciary asserted itself in a series of judgements from 1967 to 1973, the Government of the day perceived the institution as an opponent of its policies.  The supersession of  three Judges in the appointment of Chief Justice of India subsequent to the judgement in the Keshvanand Bharti case was an attempt to overawe the judiciary.  The Emergency witnessed a major assault on the Court.  Though some High Courts asserted themselves, the Supreme Court failed the nation.  The concept of a committed judiciary which pursued the social and political philosophy of the Government was advocated.  Fortunately, this phase was short-lived.

The post Emergency phase witnessed a series of landmark judgements strengthening the Fundamental Rights, expanding judicial activism and encouraging public interest litigation.  However, by a split judgement in 1983, the Supreme Court gave the last word on Judicial appointments to the Executive.  This had a serious adverse impact on the institution.  Several persons were appointed in High Courts known for their proximity to the Government in power. Realising these implications, the Court in 1993 reversed its earlier opinion and gave primacy to the Chief Justice of India in the appointment of judges.  In 1998 this primacy had to be shared with a collegium of judges.  We now have a system where effectively the judges appoint the judges.  Judges also look into the complaints of misdemeanours against judges.

Though better than the earlier system of the Executive having the last say, the BJP has always believed that on basis of these experiences that time has come to amend the Constitution and provide for a National Judicial Commission. The Commission must have a primacy of Judges, participation of the Executive and eminent representatives of the citizenry appointed by an independent collegium who would be safeguarding  public interest. The power of appointment and adjudicating grievances against judges must vest with this Commission.  The best at the Bar today are unwilling to become Judges.  From amongst the best available, the present system is unable to   select the very best.  It is too slow, time consuming, leaving many vacancies unfilled.

The power of impeachment though provided for in the Constitution is rarely exercised.  It is a power under which a political institution exercises a judicial function to rid he system of a delinquent Judge.  Since this power is rarely exercised, the power to hear routine grievances must be with the Judicial Commission.

The tendency seen in the last few decades of retiring Judges desiring to get ‘assignments’ from the Executive after retirement is disturbing.  I have always believed that the desire to continue in an ‘assignment’ for many has increased.  This has a tendency to impact on the pre-retirement conduct of a retiring judge.  I say this on the basis of my experience both in the Government and outside.  This adversity impacts judicial independence.

In order to strengthen the independence of the judiciary I have always been willing to support a proposal for extension of age of retirement of High Court Judges, payment of pension equal to the last drawn salary provided there is an embargo on this post-retirement jobs.  Independence of judiciary and dignity of a Judge are far more important in the country .than a retiring  judge’s future employment.

The very foundation of a judiciary is based on the basis where an ordinary human adjudicates disputes between fellow humans. Integrity, impartiality scholarship and credibility are essentials which a Judge must possess.  A Judge must decide cases without fear or favour.  Highlighting any aberrations and correcting them will always sub-serve the cause of an independent and impartial judiciary.