HIGH COURT OF JUDICATURE AT ALLAHABAD

Role of the Executive in Judicial Functioning

Hon’ble Mr. Justice Satish Chandra,

Former Chief Justice,

High Court, Allahabad & Calcutta

In ancient India, the king discharged inter-alia the judicial functions. The King was required to decide cases in open trial and in the courtroom and his dress and demeanor were to be such as not to overawe the litigant. He was required to take the oath of impartiality and decide cases without bias or attachment. Kartiyayan says, “the King should enter the Courtroom modestly dressed, take his seat facing east and with an attentive mind, hear the suits of his litigants”. He should act under the guidance of his judges". Kartiyayan goes on to say, “the judges guiding the King during the trial of a case were required to be independent and fearless and prevent him from committing any error or injustice. If the King wants to inflict upon the litigants an illegal or unrighteous decision, it is the duty of the judge to warn the King and prevent him”. As time passed, the King had numerous other duties and could not afford enough time to conduct litigations. He delegated his judicial functions to professional judges. Kartiyayan and all other lawgivers emphasized that the judges were to be independent and fearless even of the King. The King was not to interfere with the judiciary and on the contrary, the latter was under a duty to interfere in a case of a wrong decision by the King. John W. Spellman in “Political Theory of Ancient India” (Page 128) stated that in some respects judicial system of ancient India was theoretically better than our own today.

After the disintegration of the Harsha Empire, the administration became generally confused and obscure. The country became divided into small Kingdoms resulting in invasions of the Muslims.

In Islam, the ideal of justice was pretty high. The Prophet has stated in the Quran that "to God, a moment spent in the dispensation of justice, is better than the devotion of the man who keeps fasts every day and says prayer every night for sixty years." (See Fakruddin Mubarak Shah edited by D. Rose). Caliph Umar enunciated the principle that the law was supreme and the judge must never be subservient to the ruler. It is reported of Caliph Umar that he had once a personal lawsuit against a Jewish subject and both of them appeared before the Qazi who, on seeing the Caliph, rose in his seat out of deference. Umar considered this to be such an unpardonable weakness, that he dismissed the Qazi from the office (Vide Abdul Rahim, the Principles of Mohamadean Jurisprudence, Page 21). Subsequently, the tenure of Sultans was short-lived. The quality of justice suffered. M.B. Ahmed (Page 272) in his "Administration of Justice in Medieval India" quotes Rise of Mohamadean Power in India, Volume I, page 274 as follows:

"The medieval stage in India, as elsewhere, throughout its existence, had all the disadvantages of an autocracy - everything was temporary, personal and had no Basic strength. The personal factor in the administration had become so pronounced that a slight deviation of a head from the path of duty produced concomitant variations in the whole trunk. If the King was drunk, his magistrates were seen drunk in public."

Under the Mughal Empire, the system of justice took some shape. The Qazi had to be a Muslim scholar of blameless life, thoroughly conversant of the prescriptions of the sacred law (Encyclopedia of Islam Volume II Page 606). So J. Sarkar in his manual of his officers duties Page 27, says that on the appointment of a Qazi, he was charged by the Imperial Diwan in the following words:

"Be just, be honest, be impartial, do trials in the presence of the parties and at the court houses. Do not accept a present from the people of the place where you serve nor attend entertainments given by anybody. Know poverty to be your glory."

According to J. Sarkar, due to lack of supervision, in absence of healthy traditions, these noble ideals were observed more in breach. All the Qazis of the Mughal period, with a few honourable exceptions, were notorious for taking bribes. All the emperors from Akbar to Aurangzeb functioned as the highest court of appeal. After the death of Aurangzeb, the Mughal Empire collapsed in less than two generations.

At this stage, the British came on the scene with the conquering of Bengal. The Mughal system of justice began to be replaced by the British. In the early days of the East India Company, the judicial officers were appointed by, and were under the control of the Company. This position caused dissatisfaction and distrust in the administration of justice. With good reason, judges and magistrates were suspected to be looking up to and trying to be on the right side of the appointing authority. The Mayors’ Courts were, by the Regulating Act 1773, replaced by a Supreme Court. By the same Regulating Act, Supreme Council was also constituted to be the highest administrative institution. The boundaries between them were undefined; the Supreme Council derived its authority from the Company while the Supreme Court from the British Crown. There was a good deal of rivalry between the two and quite often they came in conflict with each other. Cowell in his Tagore Law Lectures (1872 Page 65), states:

"The case in which the disputes reached a crisis was this. In 1779 the Rajah of Cossijurah absconded to avoid the execution of a writ of the Supreme Court. Another writ was issued to sequester his land and effects. Sixty men, headed by a sarjeant of the Court, were sent to execute it. The Rajah complained that they entered his house, beat and wounded the servants, broke open and forcibly entered his zenana, stripped his place of religious worship of its ornaments, and prohibited his farmers from paying their rents. The Governor-General-in-Council instructed the Rajah not to obey the process of the Court, and ordered the troops to intercept the party of the Sheriff, and to detain them in custody till further orders. The Government also issued a notification to all zamindars and others in the three provinces that, except in the two cases of their being British servants, or bound by their own agreement, they were not to obey the process of the Court. The Supreme Court took proceeding against the Company’s attorney and the officers who seized the Sheriff’s party. The attorney was thrown into prison, and finally the Governor General in Council were at last individually served with a summons at the suit of the decree holder, whose process of execution they had disturbed. They declined to appear, and a petition, signed by the principal British inhabitants in Bengal, went home to Parliament against the exercise which the Supreme Court was making of its power."

The rule of the Supreme Court is described by Lord Macaulay as a reign of terror. He stated:

"of terror heightened by mystery; for even that which was endured was less horrible than that which was anticipated. No man knew what was next to be anticipated from this strange tribunal; it came from beyond the black water, as the people of India with mysterious horror called the sea, it consisted of Judges not one of whom was familiar with the usage's of the millions over whom they claimed boundless authority. Its records were kept in unknown characters; its sentences were pronounced in unknown sounds. No Mahratta invasion had ever spread throughout the province such dismay as this inroad of English lawyers, all the injustice of former oppressors, Asiatic and Europeans, appeared as a blessing compared with the justice of the Supreme Court."

The situation was resolved by Parliament by its Act of 1781. The Supreme Court was divested of its jurisdiction of matters concerning Revenue or its collection. Since then, the Revenue mattes have remained under the executive administration.

The Indian High Courts’ Act 1861 constituted High Courts, which supplanted the proceedings of Supreme Court. The High Court at Allahabad was constituted in 1866. Sir Robert Stuart became the Chief Justice of Allahabad High Court in 1871. Twice during his term, the Court was involved in controversy with the Government. The question on each occasion being the independence of the Court from executive interference. The first occasion was in 1873. One Girdhari Lal lost a civil suit in the High Court on the defendant establishing a plea of minority; and he was ordered to pay the defendant’s costs. He was unable to do so, and was committed to the civil jail at Dehradun. There he was seen by the Lieut. Governor, Sir William Muir, during a tour of inspection. The Lieut. Governor’s sympathy was aroused by Girdhari Lal’s plight, and he directed the Subordinate Judge to proceed under the provincial insolvency Act, and if the Judge was satisfied that the judgement-debtor had no means of paying the costs, he was directed to consider whether the debtor should not be released from imprisonment. The High Court protested that the Lieut. Governor’s action was an unwarranted interference in the judicial administration, and in March 1874 the Government of India, to whom the matter had by then been referred, upheld the High Court’s view.

Much more serious was the difference of opinion, which arose in 1876 over the case of The Queen against Fuller, Fuller was an English pleader practising in Agra. One Sunday he and his family were about to go to church; the carriage was brought to the door but the syce failed to appear. He was sent for, and when he came Fuller struck him with his open hand on his face and head so that he fell down. Fuller and his family went to church; the syce got up, went some 200 yards to adjoining compound and died almost immediately. Fuller was tried by Mr. Leeds, the joint-magistrate at Agra who framed a charge of causing hurt under section 323 of the Indian Penal Code. There was some conflict of evidence as to the number and nature of the blows struck by Fuller, but the medical evidence was that the syce had no marks of injury and had died from rupture of the spleen, which, with very slight violence would be a sufficient cause. The magistrate sentenced Fuller to pay a fine of Rs. 30 or undergo 15 day’s simple imprisonment. The High Court came to know of the matter when it received a request from the Local Government, at the instance of the Government of India, for its opinion on the adequacy of the sentence. Although not coming before it judicially the record was considered by the Judges and the Local Government was informed that, although the sentence was lighter than the Court itself would have been disposed to inflict, it was not in the circumstances specially open to objection. The Government of India, understandably one may think, took a different view:

“The Governor-General in Council cannot but regret that the High Court should have considered that its duties and responsibilities in this matter was adequately fulfilled by the expression of such an opinion. He also regrets that the Lieut. Governor should have made no enquiry, until directed to do so by the Government of India, into the circumstances of a case so injurious to the honour of British rule, and so damaging to the reputation of British Justice in this country. It was the plain duty of the magistrate to have sent Mr. Fuller for trial for the more serious offence” (i.e. of culpable homicide).

These were strong words; and the letter containing the Governor-General’s views was published in the Gazette of India.

On the 5th August, 1876, the Court sent a letter to the Government of India pointing out that the Governor-General’s pronouncement gave rise to important questions concerning the position of the High Court in India and the executive authority of the Governor-General in Council. It argued that it did not lie within the province of the Government of India either to approve or condemn the action of the Court in any matter which fell within the functions committed to the Court, or to instruct a subordinate court on the conduct of its judicial functions; and it asked that, if the Governor-General in Council were unable to concur in this view, the matter be referred to the Secretary of State for India. This letter was supplemented on the 18th August by a long minute by Sir Robert Stuart. The Chief Justice was clearly deeply disturbed at the stricture on the Court, which he considered to be wholly unwarranted, both constitutionally and in fact. He also considered that Mr. Leeds had been unfairly treated; and he said so. On the constitutional question he was decidedly of the opinion that the independence of the High Courts in relation to the Executive Government had been thoroughly established, and that the former enjoyed the same independent authority and prestige as the English Courts. He added with perhaps some lack of tact, that there were no person or authorities in India possessed of qualifications which could fit them to supervise or in any way control the High Courts, “for His Excellency and his Council, with one exception, are not, legally and technically, learned person”. (The exception was Arthur Hobhouse, Q.C.- later Lord Hobhouse, and the Law Member).

The Governor-General was unmoved and the matter accordingly went to the Secretary of State, Lord Salisbury. He dealt with the issues in two dispatches dated the 22nd March, 1877. In the first he considered the proceedings before the Magistrate; and he upheld the Governor-General’s censure of Mr. Leeds. In the second he expressed the opinion that the constitutional issued between the Court and the Government did not really arise, for in censuring Mr. Leeds and expressing its regret that the Court did not bring his proceedings under judicial review the Governor-General was dealing with purely executive functions which it was his province to control; and the fact that these functions were partially committed to the High Court did not alter their executive character.

In these circumstances the Secretary of State turned to a consideration of the constitutional issued reluctantly and only because he had been specifically asked by the Court to do so. Her Majesty’s Government did not accept the premise on which Sir Robert Stuart’s argument was founded that the Indian High Courts had the same independent authority as the English Courts. And this was so because there was a vital difference between the tenure of English and Indian Judges. Under the Act of Settlement the former held office during good behaviour; under the Indian High Courts Act of 1861 they held office during Here Majesty’s pleasure. This difference, in the Secretary of State’s opinion, was neither accidental nor inoperative; and it followed, in the Government’s view, that the right of dismissal carried with it necessarily the right to indicate the conduct which may, if persisted in, incur dismissal. It involved the right to approved or condemn the action of the officer who is so liable to be dismissed. Lord Salisbury recognized that logically this view could justify interference in purely judicial functions, and he concluded his dispatch with these words:

“But it is not necessary for me to state to you that, as a matter of policy, any executive action trenching on the independence of Judges in the Exercise of their purely judicial functions, could only be justified by reasons of extreme necessity. Your Excellency is as deeply impressed as Her Majesty’s Government with the importance of maintaining intact that confidence in the impartiality of the law Courts which any interference of the executive, except under pressure of such reasons, would destroy”.

This expression of the Government’s view could have given little satisfaction to the Court or its Chief Justice; and it was not until the Government of India Act of 1935 that legislative provision to secure the full independence of the Judges was made by making their tenure on good behaviour.

The judicial functions in criminal cases were exercised by magistrates. They were nominated by the Government. Their pay and promotions were controlled by the Government. The distrust of the public in their decisions was the same as that the East India Company appointed their own judicial officers. This state of affairs continued till the Congress Government took over power under the Government of India Act of 1935. The malady was, however, tackled very half-heartedly. Dr. Kailash Nath Katju, the then Law Minister introduced a bill putting the High Court in charge of magistrate for three years but at the end of that time, the magistrates returned to their former masters, the Government. When the magistrates knew that they were to return for pay, promotions and honours to the Government, they would be careful to keep in the good books of the Government. Sir John Douglas Young (Ret. Judge, Allahabad High Court) in his essay, “The Judiciary and the Executive”, states that while inspecting the districts he had some frank and interesting conferences with magistrates. He was told by them that they got into serious trouble if in the opinion of the Police, or the District Magistrates, they acquitted too many accused person. To avoid the reputation of an acquitting magistrate, they will convict every one towards the end of a month if they already exhausted their safe percentage of acquittals. They relied on the Appellate Court, to put right this injustice. It was scandalous that whether the Magistrate does his duty or not, should depend on who the District Magistrate is. According to Sir Douglas Young, all the Magistrates wished that they were under the High Court and not under the Government. Article 50 of the Constitution contemplated separation of judiciary from the executive. Article 237 of the Constitution makes this separation effective. In Uttar Pradesh, the Governor issued a notification making the cadre of Judicial Magistrates a dying cadre and providing that Munsif Magistrates will henceforth be recruited to function both on the civil as well as the criminal side under the control of the High Court.

In 1985, Parliament enacted the Administrative Tribunal act 13 of 1985, in pursuance of the mandate under Article 323 A of the Constitution. Under this act, all service matters pending in all the Courts original, appellate, as well as the High Court stood transferred to the Central Administrative Tribunal constituted under this Act. In future also, service matters would be exclusively under the jurisdiction of this Tribunal. The power to appoint its Chairman, Vice Chairman and Members vested under the Executive, the Government. Constitutionality of this Act was challenged before the Supreme Court in S.P. Sampath Kumar Vs. Union of India (1987 AIR, SC 386) inter-alia on, the ground that such a power of appointment will not be conducive to judicial independence. Bhagwati J. in his concurring opinion stated:

   “But so far as the appointment of Chairman, Vice-Chairman and Administrative members is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the impugned Act. There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons, as it likes as Chairman, Vice-Chairman, and Administrative members of the Administrative Tribunal. Now it may be noted that almost all cases in regard to service matters, which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the Executive to appoint the Chairman, Vice-Chairman and Administrative members. If a judicial member or an administrative member is looking forward to promotion as Vice-Chairman or Chairman, he would have to depend on the goodwill and favourable stance of the Executive and that would be likely to affect the independence and impartiality of the members of the Tribunal. The same would be the position vis-à-vis promotion to the office of Chairman of the Administrative Tribunal. The administrative members would also be likely to carry a sense of obligation to the executive for having been appointed members of the Administrative Tribunal and that would have a tendency to impair the independence and objectivity of the members of the Tribunal. There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the independence of the Chairman, Vice-Chairman and members of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such cases. That is the reason why in case of appointment of High Court Judges, the power of appointment vested in the executive is not an absolute unfettered power but it is hedged in by a wholesome check and safeguard and the President cannot make an appointment of a High Court Judge without consultation with the Chief Justice of the High Court and the Chief Justice of India and a healthy convention has grown up that no appointment would be made by the Government which is not approved by the Chief Justice of India. This check or safeguard is totally absent in the case of appointment of the Chairman, Vice-Chairman and administrative members of the Administrative Tribunal and the possibility cannot be ruled out - indeed the litigating public would certainly carry a feeling that the decision-making process of the Chairman, Vice-Chairman and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion. It can no longer be disputed that total insulation of the judiciary from all forms of interference from the co-ordinate branches of Government is a basic essential feature of the Constitution. The Constitution makers have made provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore, if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Arts. 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice-Chairman and Members of the Administrative Tribunal. Or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid. I am, therefore, of the view that the appointment of Chairman, Vice-Chairman and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons. There is also another alternative, which may be adopted by the Government for making appointments of Chairman, Vice-Chairman and members and that may be by setting up a High Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of India. Both these modes of appointment will ensure selection of proper and competent persons to man the Administrative Tribunal and give it prestige and reputation, which would inspire confidence in the public mind in regard to the competence, objectivity and impartiality of those manning the Administrative Tribunal. If either of these two modes of appointment is adopted, it would save the impugned Act from invalidation. Otherwise, it will be outside the scope of the power conferred on Parliament under Art 323-A.

It was this epoch making judgment of the Supreme Court that secured the independence of the Judiciary from executive pressure or influence. It is a matter of regret that Bhagwati J. instead of applying these Principles delivered the fate of the Judiciary on a platter to the executive, as will appear from the earlier unfortunate episodes, mentioned below.

On March 18, 1991, the Minister of Law, Government of India addressed to the Heads of States requesting them to obtain the consent of Additional Judges as well the candidates proposed for appointment as Judges, to their appointment in other High Courts. During those days the additional Judges were granted short term extension, (3 months or 6 months) though permanent vacancies were in existence.

Members of the Bar and Bar Associations questioned their constitutional validity on the grounds, inter alia, that the action of the Union Govt. forming part of a scheme constitutes a direct attack on the independence of Judiciary, which is a basic feature of the constitution; the short term extensions are directly subversive of the independence of judiciary and so unconstitutional. Bhagwati J. in his leading opinion gave a high sounding rhetoric as to the qualifications needed in modern High Court Judges. Said he; only Judges who are alive to the socio-economic realities of modern life, who are anxious to wipe every tear from every eye, who are judicial statesmen with a social vision, who are accountable to the half hungry millions in India, etc. etc. are needed.

The validity of the circular of 18.3.81 was upheld. The power to appoint and transfer High Court Judges was held to reside in the Executive Govt. The opinion of the Chief Justice of India was held not to enjoy primacy over the opinion of the other consultants. The transfer of Judges as well as non-extension of Judges after expiry of their term as additional Judges were all upheld. (S.P. Gupta Vs. Union of India & Ors. AIR 1982 Supreme Court-149).

Over the years a healthy convention had grown up by reason of which the Government invariably accepted the recommendations of the judicial functionaries. This commendation, which was the sheet anchor of the independence of the judiciary, stands considerably diluted by the decision in the Judges case that nothing binds the government and that it is free to act as it pleases so long as it completes the formality of consultation. The Executive now enjoys an over riding power in respect of appointment of the Judges of the High Court. Additional Judges are now at the mercy of the Executive. The executive Govt. of the day will assess the social philosophy and value system of a prospective candidate for High Court Judgeship. For obvious reasons, the view point will be the philosophy of the ruling power.

Emboldened by the Judges case, and the consequent low-key attitude of the highest functionaries of the judiciary, the Govt. of India on 28th Jan. 1983, announced a policy decision that Chief Justice of a High Court will be a Judge from another High Court. A Chief Justice who has one year or less left for his retirement may not be transferred and Puisne Judges who will have one year or less to retire, may be appointed Chief Justice of the local High Court.

The growing population of acting Chief Justices and the picking and choosing of few Judges for the appointment as Chief Justice in their own High Courts are the illegitimate off springs of the policy of having outside Chief Justice. Outside Chief Justices are not familiars with the members of the Bar or the members of the subordinate judiciary. They are looked upon as “foreigners” by local politicians and occasionally by the colleagues in the transferee court. By and large, the outside Chief Justice whiles away his time and is not inclined to take very active interest in the administration of the Court or of the subordinate Courts.

This policy has falsified the just expectation of Judges. It has produced distortions and has become a fluctuating policy to suit the politicians of the ruling party. At Allahabad Justice M.N. Shukla was at first continued as acting Chief Justice and then appointed as a permanent Chief Justice of Allahabad High Court, though he had a tenure of about two years. On the other hand, recently Mr. Justice P.S. Gupta, the Senior Puisne Judge, has not been appointed the Chief Justice though he had less than a year to retire. There are many such instances in the various High Courts.

It was expected that the Chief Justice of India on being consulted will put his foot down and refuse to permit such illogical transfers and appointments. It seems that he is also a victim of the views expressed in the Judges case.

I have no doubt that the policy of appointing outside Chief Justices has failed dismally and must be abandoned.

The first and the last refuge of the maintenance of the independence of the judiciary is the Bar of this Country. Time and again they have fought to frustrate the executive attempt to overawe the judiciary. It is now imperative that the Bar questions the validity of this insidious policy, taking the cue from the latest decision of the Supreme Court in the Administrative Tribunal Act case (S.P. Sampath Kumar Vs. Union of India AIR 1987 Supreme Court-386).