'Powerful, yet defenceless judges'
Opinion - The Hindu - March 08, 1999

By R. Vaigai and N.G.R. Prasad

``THERE is no office which is infinitely powerful and at the same time so frightfully
defenceless as that of a judge.''

Mr. Justice Shivappa said this in reply to a welcome address presented to him
when he was sworn in judge of the Madras High Court.

He indeed stands defenceless today in answer to a complaint regarding his age
from a non-existent person (pseudonymous as the judge says). His age has been
determined by the President under Article 217(3) of the Constitution - a decision
adverse to the judge - without hearing him. The action has drawn strong comments
from the legal community, the public and from the judge himself.

The issue is not the correctness of the decision but the manner and the context in
which it has been taken - for what are at stake are not merely the tenure of an
individual judge but his integrity and, in turn, the larger institution of judiciary itself.
Many judges have felt shaken by the action, for the resultant removal of the judge,
who has been handling highly- sensitive political cases involving a former Chief
Minister and her colleagues, cannot be seen in isolation from the repeated attempts
to shake the independence of the judiciary in recent times.

To quote the judge himself, ``I am not questioning the authority of the President.
What hurt me most is that I have not been given an opportunity to put forth my
points. I will be happy even if the President decides against me after giving me an
opportunity to present my case with documentary evidence.''

The right to hearing is a fundamental facet of the rule of law. More so in a
democracy founded on participative justice which lends credibility to the decisions.
The Supreme Court said in its landmark decision in the case of pavement dwellers:
``A right to be heard has two facets, intrinsic and instrumental. The intrinsic value of
that right consists in the opportunity which it gives to individuals or groups, against
whom decisions taken by public authorities operate, to participate in the processes
by which those decisions are made, an opportunity that expresses their dignity as
persons.''

If the Supreme Court has laid down this for the pavement dwellers, should not a
High Court judge be afforded the same dignity, if not more? Does not Article
217(3), which empowers the President to determine the age of a High Court judge,
provide for a hearing?

The Supreme Court in Jyoti Prakash Mitter's case (AIR 1971 S.C. 1093) found
that no procedure had been evolved to exercise powers under Article 217(3) but
observed that the President could evolve a procedure. However, it held that ``we
are of the view that normally an opportunity for an oral hearing should be given to
the judge.'' This was not followed in this case. No procedure seems to have been
evolved.

Further, as per this decision, the President has to act in consultation with the Chief
Justice of India but, ultimately, decide on his own. This view was doubted by a
Constitution Bench itself in the Samsher Singh case (AIR 1974 S.C. 2192).

In any case, in its more recent pronouncement dealing with appointments/transfers
of judges, the Supreme Court clearly held that the Chief Justice's opinion should
have primacy and be binding on the President. More importantly, it introduced an
element of democracy and accountability in the process by stating that the Chief
Justice should reflect the the view of a collegium of five judges, and not his opinion
alone.

This shift from the executive to the judiciary having the final word was made to
protect the independence of the judiciary. Even so, we come back to the question:
was the judge not entitled to be heard or was it just enough to invite a written reply
from him as has been done? Can the independence of the judiciary be ensured
without a fair hearing?

In the case of transfer of a High Court judge, he is consulted and his preferences
are sought. For his removal from office, Articles 124 & 217(3) provide for
impeachment proceedings. The Judges (Inquiry) Act, 1968 provides for an
elaborate enquiry into allegations of serious misconduct or incapacity. Should not a
judge whose tenure is prematurely cut short by an adverse determination of his age,
which amounts to removal, be at least heard? In a similar case of change of the
dates of birth of government servants (Binapani Dei Vs. Orissa), the Supreme
Court has said that an enquiry affording a fair opportunity is a must.

The significance of a hearing in the present case gets accentuated, considering the
background to the action. We cannot shut our eyes to the fact that the complaint
regarding the judge's age came at a time when he was hearing politically important
cases. Mr. Justice Shivappa assumed office in 1991. His date of birth, given as
December 11, 1938, was accepted by the President then after the usual vigilance
enquiry preceding a judge's appointment.

The suspicious nature of the complaint has definitely got to be looked into when the
judge points out that no such complainant exists. If so, who engineered the
complaint? One cannot dismiss the timing of the complaint as a mere coincidence.
Is not this aspect relevant to be taken note of by the authorities concerned while
investigating a complaint under Article 217(3)?

Further, the fact that the ultimate decision of the President has been communicated
most unceremoniously in a ``demi-official'' fax message dated March 4, 1999 from
Mr. Thambi Durai, Union Law Minister, lends credence to the political significance
of the action. Mr. Justice Shivappa was to pass orders the next day in one of the
mega scam cases connected with AIADMK functionaries.

Unlike judges, the executive has easy access to the President. It is the executive
which processes the files. The judge is kept totally in the dark about what
transpires among the President's Secretariat, the Chief Justice of India and the
Ministries. Suddenly, one day he gets a fax message. His tenure is cut short and he
is publicly disgraced. Is this all the content of a fair procedure promised by our
Constitution to every citizen?

According to the judge concerned, there are unimpeachable records to support his
case against the complaint. If only the principle of hearing had been adhered to, the
criticism of political interference in the decision could have been avoided. The
Supreme Court itself in Mitter's case noted the inevitable proximity of the political
executive to the President and suggested that the proceedings would have to be
exclusively dealt with by the President's Secretariat.

Mr. Justice Ratnavel Pandian in the Judges case observed that an independent
judiciary, which is the bulwark of our system, could not be ensured by mere
Constitutional assurances of service conditions of judges. What is absolutely
necessary is a holistic evaluation of a proper methodology for sponsoring, selecting
and appointing proper and fit candidates to the Supreme Court or the High Courts.
Otherwise, the credibility of the judiciary will stagger and explode, in turn crippling
the functioning of our democracy itself.

The long-standing demand for a National Judicial Commission needs to be urgently
addressed. Until then, to ensure that our judiciary continues to function fearlessly
and independently, it is absolutely necessary that at least the Constitutional
assurances on the judges' tenure be safeguarded and that they be not easily taken
away.

The shoddy manner in which Mr. Justice Shivappa has been shown the door will
only demoralise the judiciary, which is already under attack from the political forces
who are being increasingly tried in courts. It is to their advantage to have a weak
judiciary. It is for the judiciary to rise to the occasion and protect the institution.

(The writers are advocates of the Madras High Court.)