High Positions, Eminent Judges and 18 v. 56

Since the forthcoming vice presidential election on September 9 has a retired Supreme Court judge as the opposition candidate, it will be useful to go back in time to recall previous instances where retired chief justices and judges of the Supreme Court have entered the electoral fray for the offices of president and vice president.

On February 27, 1967, the Supreme Court delivered its momentous judgment in the I.C. Golaknath case, where, by a majority of 6:5, the court held that parliament in exercise of its amending power could not touch fundamental rights. This view reversed the view held by the court till then, that the amending power of parliament was unlimited.

In the context of the socialist direction of Indira Gandhi's new government, the opposition saw Chief Justice Koka Subba Rao, who headed the majority, as a saviour. They met him when he was still in office and persuaded him to be their candidate in the forthcoming presidential election, against the Congress nominee, Zakir Husain. He resigned from office to contest the elections.

Subba Rao was a citizen's judge, a pro-liberty judge. Fali Nariman was to later describe him as one of the two pathfinders in the Indian judicial firmament (the other being V.R. Krishna Iyer). But popularity made him lose his sense of propriety. He was severely criticised for accepting the nomination. Former attorney general and doyen of the bar, M.C. Setalvad, took strong exception and issued the following statement:

“Gathering events from newspaper reports, it appears that the outgoing Chief Justice of India has, reports, appear the Presidential election, acted with grave judicial impropriety; he has set at naught traditions which have governed the judiciary in our country for over a century. While still holding the highest judicial office in the country, he has met and discussed his candidature for election as the highest executive with leaders of political parties.

Perhaps, the course of action first suggested by him – accepting candidature if there was a consensus – was permissible and consistent with his dignity. But his later conduct has been unworthy in that he permitted his high judicial office to be used as a tool of party tactics. If his action is correct, the judiciary all over the country would be free, while still holding office, to put themselves forward as candidates for municipal or assembly elections and hold parleys with politicians for that purpose.

The question attributed to him by the press, ‘What is political about it?’ does, surely, not do credit to his great talent. Though there is no express constitutional prohibition against such action, it clearly is a negation of some of the basic principles underlying it, the independence of the judiciary and its aloofness from political controversies or contests.”

M. Hidayathullah, another distinguished judge, was chief justice of India from February 1968 to December 1970. Hidayatullah also had the distinction of being the only chief justice of India to serve as acting president, for a short period because President Husain died in office and Vice President V.V. Giri resigned to contest the presidential election as an independent.

In his tenure as acting president, Hidayatullah had occasion to host the visiting US President Richard Nixon, and devoted a full chapter in his autobiography to that visit. Many years later, nine years into his retirement, he was chosen by consensus as the vice presidential candidate and was elected unanimously and without controversy. He held that position with distinction from 1979 to 1984.

Three years after Hidayatullah's retirement came a presidential election. The incumbent Vice President, R. Venkataraman, became the candidate of the ruling Congress. The opposition candidate was Krishna Iyer, Nariman's other pathfinder, who had retired as a Supreme Court judge in 1980.

Krishna Iyer was a known political animal, having been home minister (as an independent) in the first-ever communist ministry in India, headed by E.M.S. Namboodripad. There was a furore when Krishna Iyer was appointed to the Supreme Court in 1973, but he did not allow his political past to lend partisanship to his judgments. Naturally, Krishna Iyer's past political leanings were an issue in the presidential election, but the campaign was conducted with utmost dignity.

Now, 38 years later, another distinguished retired judge enters the high political arena as the opposition candidate for vice president. He retired 14 years ago.

Justice Sudershan Reddy was a judge in the Krishna Iyer and Chinnappa Reddy mould, progressive (it would be fair to call him left of centre in his socio-economic philosophy), pro-liberty and staunchly secular. One of his notable judgments is in the Nandini Sundar case, where he held that arming tribal youth as special police officers was illegal and unconstitutional, and that government law enforcement could not be replaced with state-sponsored vigilantism.

He has been dignified in his campaign, and has described the election as a fight for ideology. Neither he nor his affable opposing candidate have attacked each other, but the home minister said:

“Sudershan Reddy is the person who helped Naxalism [a term used interchangeably with Maoist]. He gave Salwa Judum judgment. If the Salwa Judum judgment had not been given, the Naxal terrorism would have ended by 2020. He is the person who was inspired by the ideology that gave the Salwa Judum judgment.”

The home minister's comment was a clear misinterpretation of the Supreme Court's judgment. All that it said was that the state could not create and arm private militias to combat Maoism.

Eighteen retired judges, along with a renowned law professor and a senior advocate, sounded a word of caution with the following statement. (It would be legitimate to call many of those judges the “usual suspects” in matters of independence of the judiciary, rule of law, civil liberties and secularism):

“The statement of the Union Home Minister Mr. Amit Shah publicly misinterpreting the judgement of the Supreme Court in the Salwa Judum case is unfortunate. The judgment nowhere supports, either expressly or by compelling implication of its text, Naxalism or its ideology.

While the campaign for the office of the Vice President of India may well be ideological, it can be conducted civilly and with dignity. Criticising the so-called ideology of either candidate should be eschewed. [I have reservations about this last sentence, I must confess. Why not?]

Prejudicial misinterpretation of a judgment of the Supreme Court by a high political functionary is likely to have a chilling effect on the judges of the Supreme Court, shaking the independence of the judiciary.

Out of respect for the office of the Vice President of India, it would be wise to refrain from name-calling.”

The next day came the fiercest of responses by 56 former judges (any similarity to a vaunted chest size is purely coincidental). The first and second signatories were ‘rewardees’ of a governorship and a Rajya Sabha nomination. The fourth, Justice M.R. Shah, had expressed his admiration for the present head of the executive, both as chief justice of the Patna high court and as a sitting Supreme Court judge.

An orchestra of this size would certainly require a conductor, and definitely an organiser, especially when its pieces had to be put together at such short notice. The statement says:

“We, as former judges of this country, feel compelled to place on record our strong disagreement with the recent statement issued by a group of retired judges and activists.

It has become a predictable pattern, wherein every major political development is met with statements from the same quarters. These statements are determined to cloak their political partisanship under the language of judicial independence. This practice does a great disservice to the institution we once served, as it projects judges as political actors. This erodes the prosperity, dignity and neutrality that the office of a judicial officer demands.

A fellow retired judge has chosen, of his own volition, to contest the election for the office of the Vice President of India. By doing so, he has stepped into the political arena as a candidate supported by the opposition. Having made that choice, he must defend his candidacy like any other contestant, in the realm of political debate. To suggest otherwise is to stifle democratic discourse and to misuse the cover of judicial independence for political convenience.

Judicial independence is not threatened by the criticism of a political candidate. What truly tarnishes the reputation of the judiciary is when former judges repeatedly issue partisan statements, giving the impression that the institution itself is aligned with political battles. As a result of these tactics, because of the fault of a few, the larger body of judges ends up being painted as partisan coterie. This is neither fair nor healthy for India’s judiciary or democracy.

We therefore strongly call upon our brother judges to desist from lending their names to politically motivated statements. Let those who have chosen the path of politics defend themselves in that realm. The institution of the judiciary must be kept above and distinct from such entanglements.”

The purported signatories of the statement are from different parts of the country, without any known interventions in public discourse. They have been comfortable in their post-retirement sinecures or their arbitrations.

The purported signatory at Sl. No. 56 of the long list is Justice R.V. Raveendran, but the orchestrator seems to be unaware of the correct spelling of his name or even his initials. He is merely described as “Justice Ravindran”. Justice Raveendran is said to have clarified to Justice Reddy that he is not a signatory to the statement.

The purport of the statement by ‘56’ judges defies logic and understanding. It says that the statement by their 18 colleagues ‘projects judges as political actors’, but how? In effect it says that if falsehood is uttered against a fellow retired judge, it is none of the business of his former colleagues and that the judge should be left to fend for himself.

In a Freudian slip, it says that the statement by the 18 erodes the “prosperity” (sic) that judicial office demands. In other words, retired judges should stick to their lucrative pursuits and not be concerned that the Supreme Court is being maligned.

Raju Ramachandran is senior advocate at the Supreme Court of India.

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