Bimal Kumar Chatterjee Barrister-at-Law Sr. Advocate & Former Advocate General of State of West Bengal
A free and an independent judiciary is concomitant of democracy. In sovereign India Constitution is Supreme. In interpretative exercise on provisions of Constitution of India, the doctrine of “basic structure” propounded by Supreme Court in Kesavananda Bharati vs State of Kerala[1](1973) 4 SCC 225 is the North Star.
It may sound both queer and paradoxical that Indian Judiciary is largely free but may not be that independent. It is usually found to be free while discharging its primary duty of adjudication of disputes brought before it in one way or another according to its knowledge of applicable laws, its sense of justice and judicial conscience and its decision is expressed with reasons conforming to the established principles of judicial discipline. It has no licence to be whimsical or biased or non-transparent in discharge of its said most essential duty. Widely acknowledged and accepted principles of judicial discipline including the discipline of hierarchy operate as judiciary’s self-imposed restraints which are otherwise known as judicial virtues. Its freedom to decide therefore is not absolute. In settlement and enunciation of judicial virtues no outsider has any role to play. Principles of judicial restraints are in-house insulation intended to insulate the boundaries of judicial activities to prevent any kind of seepage to preserve purity and independence of its justice dispensation. The standard and density of such insulation to turn judiciary into an exclusive fortress gets off and on tested over time. If such insulation happens to be porous or turned porous for any internal reason the polluting forces both private and public from outside are likely to facilitate incursion into the said fortress to further weaken the state of insulation now and then ultimately adversely affecting judiciary’s both independence and freedom of adjudication and in turn justice dispensation. Therefore, by all means insulation resistance of judiciary is required to be kept and maintained at high standard at all-time which also gets tested every now and then. If freedom of and independence in adjudication is lost, the freedom and independence of judiciary is also lost and once its freedom and independence is lost it may not be possible for judiciary to regain it again or at all. The lost freedom and independence may also not admit of any measurement by any means. And that is why judiciary continuously aspires and strives to be and remain free and independent and that is why also sometime it is said that freedom and independence of judiciary is elusive if not illusive. The need of judiciary’s freedom and independence has been haunting Indian judiciary since very inception of Indian State as an independent democratic polity and at present is under serious threat.
The basic fabric of freedom and independence of judiciary is knit by the Constitution and enactments made from time to time interlacing the said fabric to render it stronger. The freedom of judiciary is reflected in availability of its jurisdiction and power to review and decide freely any dispute brought before it irrespective of their nature and character unless the Constitution or any other law for the time being in force expressly bar judiciary from entertaining and adjudicating some certain kinds and areas of dispute. Of all its powers the most riveting power of judiciary is its power of judicial review but the power of judicial review should not be interpreted as judicial supervision or superintendence over legislature and only unconstitutionality should warrant intervention of judiciary but not to replace democracy with judicial paternalism.
It is trite that the cause of any dispute is any kind of conflict of interest in society. The nature of disputes brought for adjudication before judiciary may broadly be divided under four heads and they are: (i)between an individual and another individual; (ii) between an individual and a group of individuals; (iii) between a group of individuals and another group of individuals; and (iv) between an individual or individuals and the State. __________________ [1] (1973) 4 sec 225
There however exist possibilities of variations within the aforesaid broad classification. In human society the spectrum of disputes is vast if not endless and the judiciary is chronically infested with those disputes needing their judicial and judicious treatment.
The issue of independence of judiciary necessarily and inevitably gives rise to a few smaller but significantly important questions, such as (a) independence from whom? (b) independence from what? (c) is it from fear and/or from influence and/or interference? (d) is it from prejudices and/or bias and/or self-interest and/or conflict of interest and/or from some expectations?
If the question of independence is from prejudice and/or bias and/or self-interest and/or conflict of interest and/or from some expectations, the answer to the question must rest on individual adjudicating authority’s personal propensities and preferences. In the event of the individual adjudicating authority’s propensities and preferences defeat or tend to defeat in any way the much cherished independence of judiciary appropriate punishment or penalty therefor having regard to the gravity and proportionality of offences broadly brought under the heads “misbehaviour” and/or incapacity have been crafted first by the Constitution [Article 124(4) read with Article 217(1)(b)] and then by the Judiciary itself by its practice. Indian Constitution has made provisions for removal of any adjudicating authority of High Court and Supreme Court by ‘impeachment’. Impeachment means a process followed in deciding whether a person in a position should be removed from his such position. It must however be remembered that ultimate punishment of removal by impeachment happens to be a very lengthy and hazardous process [Article 124(4)]. In not a single case so far the process of impeachment could be successfully concluded resulting in removal. In two cases of financial misbehaviour and/or misconduct the concerned judges of two High Courts (Justice Soumitra Sen of Calcutta High Court and Chief Justice A. M. Bhattacharya of Bombay High Court) apprehending impeachment resigned before the process could be commenced. In some other case of misconduct including financial misbehaviour (in the case of Justice V. Ramaswami of Supreme Court) the process for impeachment failed because of awful division on political party lines within the members of Parliament as required number of votes in favour of impeachment could not be mastered. For misconduct and/or misbehaviour of lesser gravity Constitution itself has crafted ‘transfer’ (Article 222) of an adjudicating authority from one High Court to another or withdrawing him from judicial work. Sometime judges of High Court apparently guilty of impropriety have been shunted or removed from judicial work by the Chief Justice of that High Court. In all these cases offences of misconduct and/or misbehaviour can be said to be apparent. The cases where misconduct and/or misbehaviour are not apparent fail to attract punitive action and there lies more danger.
If the question of independence of judiciary happens to be from fear and/or influence and/or interference, then the issue assumes larger implications having a more serious and wider perspective including from constitutional point of view. Then the issue brings us to the floor of constitutional provisions which have a direct link to the political philosophy popularly known as “separation of powers”. The British journalist and political philosopher Walter Bagehot (1826-1877) in the context of unwritten constitution of Great Britain had pleaded for a system of non-interference by the legislature, the government and the judicial officers to make each wing independent from another. Following the said system of non-interference Indian constitution for the country’s governance has provided separately (i)a functional executive i.e., government, (ii) a legislature i.e., a parliament and (iii) a judiciary i.e., Supreme Court for the Union at the centre. Similar arrangement of three separate wings has also been made for each state of India at state level. It is needless to say that the executive i.e., the government is only an agent of Sovereign State and so are the legislature and judiciary. However, for exclusive purpose of upholding fundamental rights under Part III of the Constitution the ‘State’ includes all governments and legislatures and all local and other authorities but not the judiciary (Article 12). Each of these three wings of Sovereign State has been made separate and independent of each other by the Constitution so far as their areas of power and functioning are concerned. Executive i.e., the government for the time being is empowered to execute its declared policies as to how it will run or govern the country. Legislature is empowered to legislate laws according to those declared policies to help the said government to execute its said policies applying the said laws. Judiciary is empowered to adjudicate all kinds of disputes arising during execution of those policies. The object of the scheme of arrangement is to facilitate participative democracy. The separation of powers of three wings of Sovereign State is expected to ensure that none of the three wings crosses the demarcating line of their respective powers and areas of functioning existing between them. Each wing however is sovereign exercising its powers delineated by the Constitution which is supreme. None of the wings is supreme as each of them is subordinate to Constitution.
There has always been a fair and also unfair amount of accusation by both executive and legislature against judiciary of crossing its demarcating line or “Laksman Rekha” which accusations are all encapsulated under the loose expression “judicial activism”. Very recently judiciary has been accused of transgressing its Lakshman Rekha in the matter of Anoop Baranwal vs Union of India popularly known as Election Commission judgement delivered on 3rd March, 2023 and reported in (2023) SCC OnLine SC 216[2] laying down how Chief Election Commissioner and other commissioners are to be appointed in the teeth of the provisions of Article 324(2) which provide a constitutional command to Parliament to enact a law in this regard but has failed so far in taking recourse to such step in disregard of that command. The issue is being wastefully debated forgetting the fact that parliament so long ignored the constitutional command and further that the aforementioned judgement is to be followed so long no law is enacted by the Parliament covering the field. Judiciary’s ‘act of cutting down’ over-activism of executive and of legislature to their respective limits drawn for each of them by the Constitution is popularly known as judicial activism. Judiciary’s all such activisms however have not been subject matters of their accusations. Accusations are levelled principally against judiciary’s those activisms (or over activism) i.e., when judiciary, according to them, is found to be overstepping or tending to overstep into the arena either of legislature or of executive or of both legislature and executive. Presently the Supreme Court has engaged itself in hearing the issue of permissibility of same sex marriage which necessarily involves a question as to whether the matter should be left for the Parliament to decide. It is the duty of judiciary to activate itself whenever the executive is found to be exercising powers beyond four corners of its powers assigned to it by the Constitution. Similar situation may also arise in the case of legislature when legislature is found to be exercising powers while legislating beyond the limits of its powers assigned to it by the Constitution. In those situations, judiciary is to act as an arbiter in respect of the dispute arising between the fixed constitutional bounds on the one hand and on the other the impugned acts either of executive or of legislature with a view to ensure strict observance of constitutional provisions by any of the other two wings of the Sovereign State always keeping in mind the most sacred and inviolable principle of Supremacy of Constitution. The motto of judiciary as an arbiter is to preserve the sanctity of constitutional provisions and to prevent any breach in observance of those provisions by any including the executive and legislature.
When and how the executive and/or the legislature for the time being will take recourse to influencing and/or interfering with the judiciary and how the judiciary will react to those attempts to influence and/or interference does not admit of any predictability and hence constant vigilance by the judiciary to guard itself from such sinister attempts to influence and/or interfere is a sine qua non for judiciary’s all time independence.
Independence of judiciary although depends on number of factors but primarily and more importantly depends on quality of the members of the judiciary i.e., first of the judges and then of the advocates. To ensure desired quality of judges the process of selection for recommendation to the post of judges assumes most importance and must therefore necessarily be made with flawless (if possible) investigation as far as humanly possible about the antecedents of the candidates offering themselves or chosen for selection. Even full proof investigation into antecedents of the candidates may not also shade any real light on a candidate’s future propensities and preferences which he might later develop as a judge including for post-retirement expectations. Realities of our experiences in the post-independence period may conservatively lead us to classify judges from the point of view of integrity generally under two broad heads, namely (i) Justice A. N. Ray variety and (ii) Justice H. R. Khanna variety. People acquainted with the history of Indian judiciary’s activities and its performance should be able to reconnect themselves to the names of these two Supreme Court judges of 1970s. Briefly, Justice Roy disregarding well established judicial discipline of seniority rule for promotion agreed to supersede three judges senior to him to become Chief Justice of India on 26th April, 1973 at the behest of the then executive. Prime Minister Indira Gandhi being disqualified from Parliament by Allahabad High Court finding her guilty of corrupt electoral practices in the elections of 1971 preferred an appeal to the Supreme Court and obtained a partial stay on 24th June, 1975 from a vacation bench allowing her only to continue as Prime Minister but barring her from voting in Parliamentary proceedings. The day after i.e., on 25th June, 1975 she had caused to be declared a National Emergency on grounds of internal disturbance under Article 352 of the constitution. During the period of emergency Article 329A was brought by Thirty-ninth Amendment to Constitution providing that the elections of Prime Minister and the Speaker could not be challenged in a court of law. On 7th November, 1975 a 5-Judge Bench of Supreme Court headed by the then Chief Justice of India Mr. Ray unanimously upheld Mrs. Gandhi’s 1971 election [(1975) Supp SCC1][3]. Article 329A was subsequently omitted by the Forty-fourth Constitution Amendment Act of 1978. Justice Khanna was superseded (by Justice M. H. Beg) who alone had upheld that fundamental rights of citizens guaranteed under Constitution could not be suspended even during emergency [ADM Jabalpur vs Shukla (1976) 2SCC 521][4]. Justice Khanna had said that no one should be deprived of liberty and life and Haveas Corpus writ could not be denied. There is no need for dredging up the sad stories of those black days of Indian judiciary. Which candidate is likely to fall under which head and on which side of the scale between the two opposite varieties also does not admit of any prediction at the time of selection. There is also a third variety of more recent origin who look forward to some kind of reward either in their post-retirement period or during the currency of their tenure and act accordingly during their tenure of judgeship to please those who are likely to be helpful to him in receiving the award and unfortunately their number perceptively is on the rise since sometime past both in High Courts and also in Supreme Court. Very recently quite unprecedentedly a judge during his tenure as a Supreme Court Judge profusely showered in public words of eulogy on Hon’ble Prime Minister of India. It is a matter of regret that speculative rumours are doing their rounds in the corridors of courts that (i) the concerned Supreme Court Judge received his post retirement award and (ii) a Chief Justice of India in not a very distant past got all support from a particular member of High Court collegium in recommending the name of the concerned Chief Justice’s lawyer sister to the post of a judge of the High Court and the concerned member of the collegium had got elevated to the Supreme Court. ____________________________ [1] (2023) SCC OnLine SC 216
It is now a matter of few decades that the issue as to who should ‘select’ candidates for the post of judges of High Courts and of Supreme Court has given rise to some controversy, both legitimate and illegitimate. Constitution (Articles 124(2) and 217) of India says that the judges are to be appointed by the President who is the head of the executive at the centre. The President, according to Constitution, is also to act in accordance with the aid and advice of the Council of Ministers with Prime Minister at its head (Article 74). Constitution is however silent as to who will select. Rule of law, as opposed to rule of men, as a sine qua non must be established to achieve the glorious objectives set by the Constitution for securing to all citizens justice, social, economic and political, irrespective of their religion, race, caste, sex and place of birth. High expectations of the Hon’ble members of the Drafting Committee of Constituent Assembly from future members of three wings of governance later faced unpleasant if not shocking realities mandating the essential need of independence and integrity of judiciary. M. C. Setalbad, the first Attorney General of independent India (1950-1963) as Chairman of 14th Law Commission had commented that he heard bitter and revealing criticisms about the appointment of judges as they were inducted by executive influence. The Hon’ble Justice Pandian in Supreme Court Advocates-on-Record vs Union of India (1993) referred to Biblical apologue of Solomon’s throne supported by lions on both sides to make the matter simple for our understanding. (I) Whether present day’s Solomon’s throne (symbolising the majesty of our justice system) is fully supported by the Lions (symbolising the legislature and executive on both sides) and (II) whether the ‘Lions’ are still under the throne or above the throne are two critical questions in determining independence of judiciary which Justice Krishna Iyer had characterised as “constitutional religion”. Justice Fazl Ali had said that independence of judiciary is a basic feature of our constitution. _____________________ [1] (1975) Supp SCC1 [1] (1976) 2SCC 521
Members of executive are most often than not motivated to influence the process of appointment of judges expecting reciprocal loyalty and gratitude from judges to obviate the possible obstruction to their somewhat autocratic design to govern in disregard of constitutional provisions. Executives never like to be told that they are constitutionaly wrong. So also the members of Legislature are awfully proud to proclaim that being elected they have mandate of the people and therefore they are supreme and not answerable to any act of overreaching constitutional provisions.
The issue as to who will select the candidates for the post of judges of higher judiciary has been settled by Solomon himself in the case of Supreme Court Advocates-on-Record vs Union of India [(1993) 4SCC 441)[5] which is popularly known as Second Judges Case. The Second Judges Case overruled the First Judges Case eg. S. P. Gupta vs Union of India [(1981) Supp SCC 87][6] and the Third Judges case (1998) i.e., Special Reference no. 1 of 1998 [(1998) 7SCC 739][7] reaffirmed the Second Judges Case. Article 124(2) of Constitution has provided that “in the case of appointment of judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. The law as has been settled by the Second Judges Case is that (a) initiation of the proposal for appointment in the case of Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court; (b) no appointment of any judge to Supreme Court or any High Court can be made unless it is in conformity with the opinion of the Chief Justice of India. In other words the role of Chief Justice of India has primacy in matters of selection of judges of Supreme Court and High Courts but the act of selection may not be in the hands of the Chief Justice of India alone how venerable or wise he may be and that is why what was required was consultation with a plurality of Judges by including in the consultative process not only judges of the Supreme Court but also judges of High Courts. And in any such consultation any intervention of executive has been held to be least welcome to avoid any kind of pollution as possibility of reciprocity through show of loyalty and gratitude to the benefactors cannot be ruled out. Under the constitutional scheme of United States, the issue of ‘legitimate power of reciprocity’ has been and still is being debated in the matter of appointment of federal judges by the President and confirmed by the Senate and in the last few years a wave of dissatisfaction with the selection process for Federal Judges has been witnessed as gratitude and loyalty have been found to be closely related. U.S. Supreme Court judges have also often shown their respective allegiance to the beliefs of the concerned President appointing them. It has been said by our Supreme Court that when favour is extended in as important as the position of judgeship in the higher judiciary one would best leave it to individual imagination to determine the enormity of the reciprocal gratitude and loyalty. Reciprocity and feelings of pay back to the political executive would be disastrous to independence of judiciary.
Since 1993 there had been no serious challenge to this position of primacy of Chief Justice of India until 2014-2015 when the Parliament passed (a) Constitution Ninety-ninth Amendment Act 2014 and (b) the National Judicial Appointments Commission Act 2014 (in short NJAC Act.). Both the Ninety-ninth Amendment Act and NJAC Act were successfully challenged in Supreme Court Advocates-on-Record Association vs Union of India where the Supreme Court declared both the legislations as ultra vires i.e. beyond powers. The respondent Union of India’s prayer for reconsideration of Second Judges Case and the Third Judges case was also turned down upholding primacy of judiciary in appointment of judges as a constituent part of basic feature of separation of powers and further that post appointment safeguards like impeachment was not enough to ensure independence of judiciary. _____________________ [1] (1993) 4SCC 441 [1] (1981) Supp SCC 87 [1] (1998) 7SCC 739
The opacy of the Supreme Court Collegium’s decision in the matter of selection of judges of High courts and Supreme Court was under critical attack but now the Supreme Court has sought to meet those criticisms by adopting a policy to disclose the minutes of the meeting of the Collegium recommending or not recommending any name proposed or sent for consideration to the Supreme Court Collegium by the High Court Collegiums. The question of opacy alone however was not the only criticism. Other critics mostly from the legislature and executive have in unison criticized the Supreme court’s exclusive power to select for appointment on the grounds that (i) Constitution itself does not give such power to the Supreme Court, (ii) public will is reflected in the members of Parliament and Parliament alone should have the right to determine by means of its legislative process like any other law enacted to cover other fields, (iii) the Supreme Court judges are not elected representative of the people and therefore cannot be vested with that power otherwise than by law, (iv) Article 124(2) and Article 217(1) of Constitution making provisions for “Consultation with Chief Justice of India” do not clothe judiciary with the exclusive power of selection. In “Supreme Court Advocates-on-Record Association vs Union of India” (1993) to uphold independence of judiciary the Supreme Court’s 9-Judge Bench has held that “after Consultation” used in two Articles must be taken to be that Chief Justice shall always be consulted and no appointment of any judge to the Supreme Court or any High Court can be made unless in conformity with the opinion of the Chief Justice of India. In other words on the question of selection for appointment of judges in Supreme Court and High Court the opinion of Chief Justice of India has the primacy and to aid the Chief Justice a Collegium of senior most judges of Supreme Court has been made.
The Supreme Court collegium consists of 5 (five) senior most judges of the Court whereas the High Court collegium consists of 3 (three) senior most judges of the court. Briefly the practice and procedure for selection of judges of the High Court so far has been that the Collegium of High Court consisting of the Chief Justice and two senior most pugne judges should first send names selected by them to the Supreme Court for consideration and appointment as judges of that High Court. The recommended names are also sent to the State Government for its consideration. After consideration of the State Government the names move to the Supreme Court’s Collegium for its consideration and recommendation. Once such recommendation is made, the selected names go to the Central Government for on forwarding to the appointing authority i.e., the President and final named persons are appointed as Judges by warrant of the President. In spite of the fact that the Central Government hardly should have any role in the process excepting acting as conduit pipe nonetheless the Central Government through its Ministry of Law has been making scrutiny of the names selected and recommended and interfering in the process of appointment either by delaying or not forwarding the recommendation for appointment which is most unwelcome and is in derogation of the established practice. It is equally and if not more unwelcome that the Supreme Court collegium has not been that vocal against the government’s conduct until very recently. Whether this attitude of the Central Government is acceptable or not is a matter which requires some more firm rethinking. The process was much simpler when I was invited to become a judge. I wonder if because of such simpler procedure I was so invited to adorn the chair of a Judge in a High Court ! It will be wholly wrong to think however that exclusive power of selection alone will or can ensure independence of judiciary. Independence of judiciary also implies that judiciary should be free from influence and interference of executive. Executive tends to detest freedom and independence of judiciary and tries first to influence and then interfere in the functioning of judiciary by very many dubious means to convert judiciary into an extension of executive, if possible. Some of those who are ultimately appointed as judges also betray the independence facilitating the passage of executives’ influences and interference in the judiciary adversely affecting quality of democracy.
Since sometime past lobbying for being appointed as judge has assumed some kind of practice adopted by the undeserving candidates as minimum qualification for being appointed as a judge of High Court for an advocate is only ten years of practice. If ten years is calculated from the date of enrollment of an advocate irrespective of his effective practice in law, then it is likely to be disastrous. That is why length of practice is also weighed along with an advocate’s graph of yearly professional income and acknowledged standard of practice along with his reputation as an upright advocate otherwise. All these can also become variable depending upon the constitution of collegium and collegium’s discretion at particular points. Yearly professional income can also be inflated by dubious methods. To avoid variability and indiscretion a well thought out standard needs to be objectively fixed for selection. What happens in the case of elevation to the Supreme Court was not known until very recent time. My mentor legendary scholar and lawyer Mr. Subrata Roychowdhury, Barrister-at-law and Senior Advocate at a point of time was reasonably influential in the corridors of Supreme Court. He was very much respected by the successive Supreme Court Chief Justices including Justice Y. V. Chandrachud and Justice P.N. Bhagwati because of his vast contribution to international law. In 1980s I saw a very competent and upright Calcutta High Court Judge requesting Mr. Roychowdhury to talk to the then Chief Justice of the Supreme for his elevation to Supreme Court. In the recent period a Supreme Court Judge in response to my query told that the most important person in the matter for elevation to Supreme Court is the Chief Justice of Supreme Court. This view of the particular judge was expressed before 2016. His whisper that the Chief Justice of India needs to be pleased could only make me unhappy. I have also seen how an aspiring High Court Chief Justice used to go all out to please the Chief Justice of India whenever CJI was in Kolkata on whatever occasion. There has also been criticism of the Collegium system both within and outside Supreme Court and High Court. Two Supreme Court Judges of recent period, e.g. Justice Ruma Pal, and Justice Chelameswar had openly criticized the Collegium system. Justice Pal criticized after she retired whereas Justice Jasti Chelameswer did so before his retirement. They said that in the collegium’s meeting there was hardly any discussion on merits of the proposed names, whether for the appointment to Supreme Court or for the appointment to High Courts. And they also said that there was also no transparency in the system. After these criticisms the Supreme Court collegium has started releasing the names recommended and also very unhappy practice of disclosing reasons for rejecting other names recommended by the collegium of High Court. In 2009 in an open letter addressed to the Honble Governor of West Bengal and the Honble Chief Minister of West Bengal I had expressed my anguish over the Chief Minister Buddhadeb Bhattacharya’s indiscretion in disclosing the reasons of his objections to two recommended names of two young advocates for elevation to the print media The Telegraph (5th January, 2009). The names recommended but not selected for elevation, in my view, need not be published as disclosure of such names involves question of some reputation of young advocates. Not only the members of the judiciary (including the members of the bar) but also the members of the society at large are still not happy with the present state of transparency brought about by Supreme Court.
Independence of Judiciary is an oft quoted refuge which is cited at the bar. Is Indian judiciary that independent? The greatest enemy of independence of judiciary is the executive and more so when the executive becomes more active in politicizing the judiciary. Executives would love to see that there is no judicial restraint on any of its activities whether at central level or at state levels. They tend to think judiciary to be a devil who is after the executive’s blood and therefore sooner the judiciary can be controlled, if not made fully subservient to the executive, it is better. It is however now well established in the eyes of public at large that only the judiciary as an arbiter can rescue them from their unjust deprivations. Elimination of that role of judiciary would tend to bring in autocracy through majoritarianism as from majotarianism autocracy is to only a short slide backward. Judiciary and the judicial process have been interfered with and influenced by the executives with or without the assistance of the members of bar. Integrity of advocates is also very much critical and crucial to much cherished independence of judiciary. There are instances where the members of the bar have been used by the executives as vehicles to have access to the judiciary and more-often than not to the judicial process to pollute the system. The chariot of politics sometime boastfully and openly move and most often stealthily do so to politicize every sphere and part of judiciary. Independence of judiciary often is further viciously compromised by the members of the Bench (Judges) by their not that too opaque conduct while administering and dispensing justice. That conduct is also polluted by their bias giving rise to suspicion of all kinds.
In April, 2018 a very unhealthy and embarrassing incident took place within the precincts of Supreme Court of India which never happened before. Four senior most Judges of Supreme Court called the press to express their grievances against, alleged high handedness of the Chief Justice of India (Justice Dipak Misra). The grievances were principally twofold. Their first grievance was that the Chief Justice was not following any discipline in the matter of allotment of cases for hearing to the other Judges of the court. The second grievance was more serious which was that the Chief Justice was allotting important cases bypassing the benches presided over by the senior Judges to relatively selective junior Judges and the Chief Justice without holding deliberation with the Judges was preparing the roster of cases in a very selective manner. The allegations delivered fuel to some of the opposition parties’ desire to impeach Chief Justice Dipak Misra which ultimately ended in a fiasco. The chairman of the Upper House of the Parliament (The Vice-President) i.e. Rajya Sabha rejected the proposal of a few members for impeachment of Chief Justice of India. Subsequently, when such rejection of the Vice President was challenged in the Supreme Court the challenge itself was advisedly withdrawn. Now it has however been reestablished by Supreme Court in Campaign for Judicial Accountability vs Union [(2018) 1SCC 196][8] that the preparation of the roster of cases is the exclusive prerogative of the Chief Justice only. The indiscipline of four judges was however not taken very kindly by the people concerned as their grievances should have been amicably resolved internally. The Chief Justice of High Court also determines the roster but he normally takes opinions of two senior most judges although he is not obliged to do so.
In early 2023 two high ranking executives of central government viz. the Hon’ble Vice President of India Mr. Jagdeep Dhankhar and the Hon’ble Law Minister Mr. Kiren Rijiju launched a two prong attack against the existing procedure of selection for appointment of judges in the higher judiciary. Such invasion must not be taken by the judiciary as temporary aberration of executive. The judiciary must also be ready to face more such and other invasions in the line of present Israeli Prime Minister Benjamin Netanyahu’s proposed judicial reform to balance power between the executive and judiciary so that the elective government is not constrained by the courts. Mr. Rijiju lately criticised the judgement of Supreme Court in Third Judges Case which had held that both Ninety-ninth Amendment to the Constitution and NJAC Act were ultra vires. He has moved on to opine further that selection of judges by collegium system suffers from opacy and the judges are not accountable to anyone as judges do not contest election or face public scrutiny. On the other hand Mr. Dhankhar has questioned the correctness of the judgement of Supreme Court in Kesavananda Bharati vs State of Kerala (1973) which had held that the power of Parliament to amend Constitution (Article 368) was not absolute and basic structure of our constitution was not amenable to Parliament’s said power. Basic structure and framework of Constitution are constructed with some basic features including (i) fundamental rights under Part III of the Constitution and (ii) independence of judiciary. According to Mr. Dhankhar as the representatives elected by people constituting Parliament are answerable to people they are and must be all powerful and its power to amend Constitution cannot admit any kind of restriction or limitation whatsoever and therefore classification of some features of Constitution as basic feature and designating them as unamenable to Parliament’s power to amend cannot be accepted. His charge boils down to denying constitutional courts’ power to “judicially review” any legislative action of Parliament including its power to enact Ninety-ninth Constitution Amendment Act and NJAC Act. He went on to opine that “If any institution on any basis strikes down the laws passed by Parliament, then it will not be good for democracy and it could be difficult to say we are a democratic country” and further that “the executive is ordained to be in compliance with the constitutional prescription emanating from Parliament. It was obliged to adhere to the NJAC and that judicial verdict cannot run it down.” He characterised the Supreme Court judgement on NJAC Act as glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people. Lok Sabha Speaker OM Birla supplemented Mr. Dhankhar’s statement by saying that “judiciary was expected to follow separation of power mandated by the constitution” implying that the judiciary was guilty of over activism in respect of NJAC Act. The present invasion of both executive and legislature and that too almost in unison against judiciary deserves and calls for a legitimate revisit to independence of judiciary. The two honourable members of the Executive however need to be humbly told that (i) Parliament is neither sovereign, nor is supreme; (ii) what is supreme in Indian constitutional structure is the Constitution and none of the three wings of governance is; (iii) in the backdrop of revealed propensities of executives and parliamentarians the quintessential feature of our constitution is basic feature doctrine justifiably propounded by Kesavananda Bharati which is to be regarded as the life line of Indian Constitutional system and is to be seen as inviolable more particularly when high expectations of the Drafting Committee of the Constituent Assembly have been belied by the realities of performance of the members of the Parliament; (iv)Members of Parliament being elected are not all powerful or constitutionally empowered to legislate in disregard of constitutional provisions. ____________________ [1] (2018) 1SCC 196
The pathetic performance of members of Parliament is replete and reflected in (a) excessive number of legislations passed in the Parliament because of simple absolute majority; (b) almost negligible time taken in Parliament to convert a bill into law in utter disregard and disrespect of parliamentary procedures for legislation; (c) absence of any or any fruitful debate taking place before a bill is passed; (d) disproportionate number of ordinances passed as against the number of bills passed; (e) minimum number of bills sent to select committee; (f) number of days in a year Parliament effectively sit and matters discussed. In 2021 during its monsoon session Parliament could not function for more than 1/4th of its time because of unruly atmosphere in Parliament. Most of the bills were got passed without any debate at all. About 14 bills were passed in less than ten minutes. None of 15 bills was sent to select committee. Between 2014 and 2021 the government passed 76 ordinances without taking recourse to presenting bills. Between 2014 and 2020 the Prime Minister spoke in the Parliament only 22 times meaning thereby 3.6 times in a year. Although on May 20, 2014 Mr. Narendra Modi, then the Prime Minister designate bowed and touched his forehead on the steps of the entrance of Parliament but as Prime Minister he can now be said to be a reluctant parliamentarian. And all Hon’ble executives were necessarily from the parties constituting ruling majority in Parliament! The aforesaid records speak volume of the Hon’ble members’ regard for constitutional provisions and their responsibilities as people’s representatives towards the people they represent in the Parliament. In the Parliament 39% (116) of Bharatiya Janata Party’s winning candidates in 2019 had criminal cases against them and 57% (29) of Congress Party’s winning candidates had criminal records. The recent budget (2023-24) got passed without any debate because the Parliament has not functioned at the instance of treasury benches. All these are tragic evidences of utter anti-democratic practice to say the least.
03:45:00 PM {"id":1609,"user_id":1,"title":"Revisiting Independence of Indian Judiciary","slug":"revisiting-independence-indian-judiciary","excerpt":"Revisiting Independence of Indian Judiciary","content":"<p><img src=\"\/storage\/app\/media\/BimalChatterjee-100.jpg\" alt=\"\" width=\"100\" height=\"121\" \/><br \/><strong>Bimal Kumar Chatterjee<br \/><\/strong><strong>Barrister-at-Law<br \/><\/strong><strong>Sr. Advocate & Former Advocate General of State of West Bengal<br \/><\/strong><\/p>\r\n<p style=\"text-align: justify;\">A free and an independent judiciary is concomitant of democracy. In sovereign India Constitution is Supreme. In interpretative exercise on provisions of Constitution of India, the doctrine of “basic structure” propounded by Supreme Court in Kesavananda Bharati vs State of Kerala[1](1973) 4 SCC 225 is the North Star. <\/p>\r\n<p style=\"text-align: justify;\">It may sound both queer and paradoxical that Indian Judiciary is largely free but may not be that independent. It is usually found to be free while discharging its primary duty of adjudication of disputes brought before it in one way or another according to its knowledge of applicable laws, its sense of justice and judicial conscience and its decision is expressed with reasons conforming to the established principles of judicial discipline. It has no licence to be whimsical or biased or non-transparent in discharge of its said most essential duty. Widely acknowledged and accepted principles of judicial discipline including the discipline of hierarchy operate as judiciary’s self-imposed restraints which are otherwise known as judicial virtues. Its freedom to decide therefore is not absolute. In settlement and enunciation of judicial virtues no outsider has any role to play. Principles of judicial restraints are in-house insulation intended to insulate the boundaries of judicial activities to prevent any kind of seepage to preserve purity and independence of its justice dispensation. The standard and density of such insulation to turn judiciary into an exclusive fortress gets off and on tested over time. If such insulation happens to be porous or turned porous for any internal reason the polluting forces both private and public from outside are likely to facilitate incursion into the said fortress to further weaken the state of insulation now and then ultimately adversely affecting judiciary’s both independence and freedom of adjudication and in turn justice dispensation. Therefore, by all means insulation resistance of judiciary is required to be kept and maintained at high standard at all-time which also gets tested every now and then. If freedom of and independence in adjudication is lost, the freedom and independence of judiciary is also lost and once its freedom and independence is lost it may not be possible for judiciary to regain it again or at all. The lost freedom and independence may also not admit of any measurement by any means. And that is why judiciary continuously aspires and strives to be and remain free and independent and that is why also sometime it is said that freedom and independence of judiciary is elusive if not illusive. The need of judiciary’s freedom and independence has been haunting Indian judiciary since very inception of Indian State as an independent democratic polity and at present is under serious threat.<\/p>\r\n<p style=\"text-align: justify;\">The basic fabric of freedom and independence of judiciary is knit by the Constitution and enactments made from time to time interlacing the said fabric to render it stronger. The freedom of judiciary is reflected in availability of its jurisdiction and power to review and decide freely any dispute brought before it irrespective of their nature and character unless the Constitution or any other law for the time being in force expressly bar judiciary from entertaining and adjudicating some certain kinds and areas of dispute. Of all its powers the most riveting power of judiciary is its power of judicial review but the power of judicial review should not be interpreted as judicial supervision or superintendence over legislature and only unconstitutionality should warrant intervention of judiciary but not to replace democracy with judicial paternalism. <\/p>\r\n<p style=\"text-align: justify;\">It is trite that the cause of any dispute is any kind of conflict of interest in society. The nature of disputes brought for adjudication before judiciary may broadly be divided under four heads and they are: (i)between an individual and another individual; (ii) between an individual and a group of individuals; (iii) between a group of individuals and another group of individuals; and (iv) between an individual or individuals and the State.<br \/><em>__________________<br \/><\/em>[1] (1973) 4 sec 225<\/p>\r\n<p style=\"text-align: justify;\">There however exist possibilities of variations within the aforesaid broad classification. In human society the spectrum of disputes is vast if not endless and the judiciary is chronically infested with those disputes needing their judicial and judicious treatment. <\/p>\r\n<p style=\"text-align: justify;\">The issue of independence of judiciary necessarily and inevitably gives rise to a few smaller but significantly important questions, such as (a) independence from whom? (b) independence from what? (c) is it from fear and\/or from influence and\/or interference? (d) is it from prejudices and\/or bias and\/or self-interest and\/or conflict of interest and\/or from some expectations? <\/p>\r\n<p style=\"text-align: justify;\">If the question of independence is from prejudice and\/or bias and\/or self-interest and\/or conflict of interest and\/or from some expectations, the answer to the question must rest on individual adjudicating authority’s personal propensities and preferences. In the event of the individual adjudicating authority’s propensities and preferences defeat or tend to defeat in any way the much cherished independence of judiciary appropriate punishment or penalty therefor having regard to the gravity and proportionality of offences broadly brought under the heads “misbehaviour” and\/or incapacity have been crafted first by the Constitution [Article 124(4) read with Article 217(1)(b)] and then by the Judiciary itself by its practice. Indian Constitution has made provisions for removal of any adjudicating authority of High Court and Supreme Court by ‘impeachment’. Impeachment means a process followed in deciding whether a person in a position should be removed from his such position. It must however be remembered that ultimate punishment of removal by impeachment happens to be a very lengthy and hazardous process [Article 124(4)]. In not a single case so far the process of impeachment could be successfully concluded resulting in removal. In two cases of financial misbehaviour and\/or misconduct the concerned judges of two High Courts (Justice Soumitra Sen of Calcutta High Court and Chief Justice A. M. Bhattacharya of Bombay High Court) apprehending impeachment resigned before the process could be commenced. In some other case of misconduct including financial misbehaviour (in the case of Justice V. Ramaswami of Supreme Court) the process for impeachment failed because of awful division on political party lines within the members of Parliament as required number of votes in favour of impeachment could not be mastered. For misconduct and\/or misbehaviour of lesser gravity Constitution itself has crafted ‘transfer’ (Article 222) of an adjudicating authority from one High Court to another or withdrawing him from judicial work. Sometime judges of High Court apparently guilty of impropriety have been shunted or removed from judicial work by the Chief Justice of that High Court. In all these cases offences of misconduct and\/or misbehaviour can be said to be apparent. The cases where misconduct and\/or misbehaviour are not apparent fail to attract punitive action and there lies more danger. <\/p>\r\n<p style=\"text-align: justify;\">If the question of independence of judiciary happens to be from fear and\/or influence and\/or interference, then the issue assumes larger implications having a more serious and wider perspective including from constitutional point of view. Then the issue brings us to the floor of constitutional provisions which have a direct link to the political philosophy popularly known as “separation of powers”. The British journalist and political philosopher Walter Bagehot (1826-1877) in the context of unwritten constitution of Great Britain had pleaded for a system of non-interference by the legislature, the government and the judicial officers to make each wing independent from another. Following the said system of non-interference Indian constitution for the country’s governance has provided separately (i)a functional executive i.e., government, (ii) a legislature i.e., a parliament and (iii) a judiciary i.e., Supreme Court for the Union at the centre. Similar arrangement of three separate wings has also been made for each state of India at state level. It is needless to say that the executive i.e., the government is only an agent of Sovereign State and so are the legislature and judiciary. However, for exclusive purpose of upholding fundamental rights under Part III of the Constitution the ‘State’ includes all governments and legislatures and all local and other authorities but not the judiciary (Article 12). Each of these three wings of Sovereign State has been made separate and independent of each other by the Constitution so far as their areas of power and functioning are concerned. Executive i.e., the government for the time being is empowered to execute its declared policies as to how it will run or govern the country. Legislature is empowered to legislate laws according to those declared policies to help the said government to execute its said policies applying the said laws. Judiciary is empowered to adjudicate all kinds of disputes arising during execution of those policies. The object of the scheme of arrangement is to facilitate participative democracy. The separation of powers of three wings of Sovereign State is expected to ensure that none of the three wings crosses the demarcating line of their respective powers and areas of functioning existing between them. Each wing however is sovereign exercising its powers delineated by the Constitution which is supreme. None of the wings is supreme as each of them is subordinate to Constitution.<\/p>\r\n<p style=\"text-align: justify;\">There has always been a fair and also unfair amount of accusation by both executive and legislature against judiciary of crossing its demarcating line or “Laksman Rekha” which accusations are all encapsulated under the loose expression “judicial activism”. Very recently judiciary has been accused of transgressing its Lakshman Rekha in the matter of Anoop Baranwal vs Union of India popularly known as Election Commission judgement delivered on 3<sup>rd<\/sup> March, 2023 and reported in (2023) SCC OnLine SC 216[2] laying down how Chief Election Commissioner and other commissioners are to be appointed in the teeth of the provisions of Article 324(2) which provide a constitutional command to Parliament to enact a law in this regard but has failed so far in taking recourse to such step in disregard of that command. The issue is being wastefully debated forgetting the fact that parliament so long ignored the constitutional command and further that the aforementioned judgement is to be followed so long no law is enacted by the Parliament covering the field. Judiciary’s ‘act of cutting down’ over-activism of executive and of legislature to their respective limits drawn for each of them by the Constitution is popularly known as judicial activism. Judiciary’s all such activisms however have not been subject matters of their accusations. Accusations are levelled principally against judiciary’s those activisms (or over activism) i.e., when judiciary, according to them, is found to be overstepping or tending to overstep into the arena either of legislature or of executive or of both legislature and executive. Presently the Supreme Court has engaged itself in hearing the issue of permissibility of same sex marriage which necessarily involves a question as to whether the matter should be left for the Parliament to decide. It is the duty of judiciary to activate itself whenever the executive is found to be exercising powers beyond four corners of its powers assigned to it by the Constitution. Similar situation may also arise in the case of legislature when legislature is found to be exercising powers while legislating beyond the limits of its powers assigned to it by the Constitution. In those situations, judiciary is to act as an arbiter in respect of the dispute arising between the fixed constitutional bounds on the one hand and on the other the impugned acts either of executive or of legislature with a view to ensure strict observance of constitutional provisions by any of the other two wings of the Sovereign State always keeping in mind the most sacred and inviolable principle of Supremacy of Constitution. The motto of judiciary as an arbiter is to preserve the sanctity of constitutional provisions and to prevent any breach in observance of those provisions by any including the executive and legislature. <\/p>\r\n<p style=\"text-align: justify;\">When and how the executive and\/or the legislature for the time being will take recourse to influencing and\/or interfering with the judiciary and how the judiciary will react to those attempts to influence and\/or interference does not admit of any predictability and hence constant vigilance by the judiciary to guard itself from such sinister attempts to influence and\/or interfere is a sine qua non for judiciary’s all time independence. <\/p>\r\n<p style=\"text-align: justify;\">Independence of judiciary although depends on number of factors but primarily and more importantly depends on quality of the members of the judiciary i.e., first of the judges and then of the advocates. To ensure desired quality of judges the process of selection for recommendation to the post of judges assumes most importance and must therefore necessarily be made with flawless (if possible) investigation as far as humanly possible about the antecedents of the candidates offering themselves or chosen for selection. Even full proof investigation into antecedents of the candidates may not also shade any real light on a candidate’s future propensities and preferences which he might later develop as a judge including for post-retirement expectations. Realities of our experiences in the post-independence period may conservatively lead us to classify judges from the point of view of integrity generally under two broad heads, namely (i) Justice A. N. Ray variety and (ii) Justice H. R. Khanna variety. People acquainted with the history of Indian judiciary’s activities and its performance should be able to reconnect themselves to the names of these two Supreme Court judges of 1970s. Briefly, Justice Roy disregarding well established judicial discipline of seniority rule for promotion agreed to supersede three judges senior to him to become Chief Justice of India on 26<sup>th<\/sup> April, 1973 at the behest of the then executive. Prime Minister Indira Gandhi being disqualified from Parliament by Allahabad High Court finding her guilty of corrupt electoral practices in the elections of 1971 preferred an appeal to the Supreme Court and obtained a partial stay on 24<sup>th<\/sup> June, 1975 from a vacation bench allowing her only to continue as Prime Minister but barring her from voting in Parliamentary proceedings. The day after i.e., on 25<sup>th<\/sup> June, 1975 she had caused to be declared a National Emergency on grounds of internal disturbance under Article 352 of the constitution. During the period of emergency Article 329A was brought by Thirty-ninth Amendment to Constitution providing that the elections of Prime Minister and the Speaker could not be challenged in a court of law. On 7<sup>th<\/sup> November, 1975 a 5-Judge Bench of Supreme Court headed by the then Chief Justice of India Mr. Ray unanimously upheld Mrs. Gandhi’s 1971 election [(1975) Supp SCC1][3]. Article 329A was subsequently omitted by the Forty-fourth Constitution Amendment Act of 1978. Justice Khanna was superseded (by Justice M. H. Beg) who alone had upheld that fundamental rights of citizens guaranteed under Constitution could not be suspended even during emergency [ADM Jabalpur vs Shukla (1976) 2SCC 521][4]. Justice Khanna had said that no one should be deprived of liberty and life and Haveas Corpus writ could not be denied. There is no need for dredging up the sad stories of those black days of Indian judiciary. Which candidate is likely to fall under which head and on which side of the scale between the two opposite varieties also does not admit of any prediction at the time of selection. There is also a third variety of more recent origin who look forward to some kind of reward either in their post-retirement period or during the currency of their tenure and act accordingly during their tenure of judgeship to please those who are likely to be helpful to him in receiving the award and unfortunately their number perceptively is on the rise since sometime past both in High Courts and also in Supreme Court. Very recently quite unprecedentedly a judge during his tenure as a Supreme Court Judge profusely showered in public words of eulogy on Hon’ble Prime Minister of India. It is a matter of regret that speculative rumours are doing their rounds in the corridors of courts that (i) the concerned Supreme Court Judge received his post retirement award and (ii) a Chief Justice of India in not a very distant past got all support from a particular member of High Court collegium in recommending the name of the concerned Chief Justice’s lawyer sister to the post of a judge of the High Court and the concerned member of the collegium had got elevated to the Supreme Court. <br \/>____________________________<br \/>[1] (2023) SCC OnLine SC 216<\/p>\r\n<p style=\"text-align: justify;\">It is now a matter of few decades that the issue as to who should ‘select’ candidates for the post of judges of High Courts and of Supreme Court has given rise to some controversy, both legitimate and illegitimate. Constitution (Articles 124(2) and 217) of India says that the judges are to be appointed by the President who is the head of the executive at the centre. The President, according to Constitution, is also to act in accordance with the aid and advice of the Council of Ministers with Prime Minister at its head (Article 74). Constitution is however silent as to who will select. Rule of law, as opposed to rule of men, as a sine qua non must be established to achieve the glorious objectives set by the Constitution for securing to all citizens justice, social, economic and political, irrespective of their religion, race, caste, sex and place of birth. High expectations of the Hon’ble members of the Drafting Committee of Constituent Assembly from future members of three wings of governance later faced unpleasant if not shocking realities mandating the essential need of independence and integrity of judiciary. M. C. Setalbad, the first Attorney General of independent India (1950-1963) as Chairman of 14th Law Commission had commented that he heard bitter and revealing criticisms about the appointment of judges as they were inducted by executive influence. The Hon’ble Justice Pandian in Supreme Court Advocates-on-Record vs Union of India (1993) referred to Biblical apologue of Solomon’s throne supported by lions on both sides to make the matter simple for our understanding. (I) Whether present day’s Solomon’s throne (symbolising the majesty of our justice system) is fully supported by the Lions (symbolising the legislature and executive on both sides) and (II) whether the ‘Lions’ are still under the throne or above the throne are two critical questions in determining independence of judiciary which Justice Krishna Iyer had characterised as “constitutional religion”. Justice Fazl Ali had said that independence of judiciary is a basic feature of our constitution.<br \/>_____________________<br \/>[1] (1975) Supp SCC1<br \/>[1] (1976) 2SCC 521<\/p>\r\n<p style=\"text-align: justify;\">Members of executive are most often than not motivated to influence the process of appointment of judges expecting reciprocal loyalty and gratitude from judges to obviate the possible obstruction to their somewhat autocratic design to govern in disregard of constitutional provisions. Executives never like to be told that they are constitutionaly wrong. So also the members of Legislature are awfully proud to proclaim that being elected they have mandate of the people and therefore they are supreme and not answerable to any act of overreaching constitutional provisions. <\/p>\r\n<p style=\"text-align: justify;\">The issue as to who will select the candidates for the post of judges of higher judiciary has been settled by Solomon himself in the case of Supreme Court Advocates-on-Record vs Union of India [(1993) 4SCC 441)[5] which is popularly known as Second Judges Case. The Second Judges Case overruled the First Judges Case eg. S. P. Gupta vs Union of India [(1981) Supp SCC 87][6] and the Third Judges case (1998) i.e., Special Reference no. 1 of 1998 [(1998) 7SCC 739][7] reaffirmed the Second Judges Case. Article 124(2) of Constitution has provided that “in the case of appointment of judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. The law as has been settled by the Second Judges Case is that (a) initiation of the proposal for appointment in the case of Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court; (b) no appointment of any judge to Supreme Court or any High Court can be made unless it is in conformity with the opinion of the Chief Justice of India. In other words the role of Chief Justice of India has primacy in matters of selection of judges of Supreme Court and High Courts but the act of selection may not be in the hands of the Chief Justice of India alone how venerable or wise he may be and that is why what was required was consultation with a plurality of Judges by including in the consultative process not only judges of the Supreme Court but also judges of High Courts. And in any such consultation any intervention of executive has been held to be least welcome to avoid any kind of pollution as possibility of reciprocity through show of loyalty and gratitude to the benefactors cannot be ruled out. Under the constitutional scheme of United States, the issue of ‘legitimate power of reciprocity’ has been and still is being debated in the matter of appointment of federal judges by the President and confirmed by the Senate and in the last few years a wave of dissatisfaction with the selection process for Federal Judges has been witnessed as gratitude and loyalty have been found to be closely related. U.S. Supreme Court judges have also often shown their respective allegiance to the beliefs of the concerned President appointing them. It has been said by our Supreme Court that when favour is extended in as important as the position of judgeship in the higher judiciary one would best leave it to individual imagination to determine the enormity of the reciprocal gratitude and loyalty. Reciprocity and feelings of pay back to the political executive would be disastrous to independence of judiciary. <\/p>\r\n<p style=\"text-align: justify;\">Since 1993 there had been no serious challenge to this position of primacy of Chief Justice of India until 2014-2015 when the Parliament passed (a) Constitution Ninety-ninth Amendment Act 2014 and (b) the National Judicial Appointments Commission Act 2014 (in short NJAC Act.). Both the Ninety-ninth Amendment Act and NJAC Act were successfully challenged in Supreme Court Advocates-on-Record Association vs Union of India where the Supreme Court declared both the legislations as ultra vires i.e. beyond powers. The respondent Union of India’s prayer for reconsideration of Second Judges Case and the Third Judges case was also turned down upholding primacy of judiciary in appointment of judges as a constituent part of basic feature of separation of powers and further that post appointment safeguards like impeachment was not enough to ensure independence of judiciary. <br \/>_____________________<br \/>[1] (1993) 4SCC 441<br \/>[1] (1981) Supp SCC 87<br \/>[1] (1998) 7SCC 739<\/p>\r\n<p style=\"text-align: justify;\">The opacy of the Supreme Court Collegium’s decision in the matter of selection of judges of High courts and Supreme Court was under critical attack but now the Supreme Court has sought to meet those criticisms by adopting a policy to disclose the minutes of the meeting of the Collegium recommending or not recommending any name proposed or sent for consideration to the Supreme Court Collegium by the High Court Collegiums. The question of opacy alone however was not the only criticism. Other critics mostly from the legislature and executive have in unison criticized the Supreme court’s exclusive power to select for appointment on the grounds that (i) Constitution itself does not give such power to the Supreme Court, (ii) public will is reflected in the members of Parliament and Parliament alone should have the right to determine by means of its legislative process like any other law enacted to cover other fields, (iii) the Supreme Court judges are not elected representative of the people and therefore cannot be vested with that power otherwise than by law, (iv) Article 124(2) and Article 217(1) of Constitution making provisions for “Consultation with Chief Justice of India” do not clothe judiciary with the exclusive power of selection. In “Supreme Court Advocates-on-Record Association vs Union of India” (1993) to uphold independence of judiciary the Supreme Court’s 9-Judge Bench has held that “after Consultation” used in two Articles must be taken to be that Chief Justice shall always be consulted and no appointment of any judge to the Supreme Court or any High Court can be made unless in conformity with the opinion of the Chief Justice of India. In other words on the question of selection for appointment of judges in Supreme Court and High Court the opinion of Chief Justice of India has the primacy and to aid the Chief Justice a Collegium of senior most judges of Supreme Court has been made.<\/p>\r\n<p style=\"text-align: justify;\">The Supreme Court collegium consists of 5 (five) senior most judges of the Court whereas the High Court collegium consists of 3 (three) senior most judges of the court. Briefly the practice and procedure for selection of judges of the High Court so far has been that the Collegium of High Court consisting of the Chief Justice and two senior most pugne judges should first send names selected by them to the Supreme Court for consideration and appointment as judges of that High Court. The recommended names are also sent to the State Government for its consideration. After consideration of the State Government the names move to the Supreme Court’s Collegium for its consideration and recommendation. Once such recommendation is made, the selected names go to the Central Government for on forwarding to the appointing authority i.e., the President and final named persons are appointed as Judges by warrant of the President. In spite of the fact that the Central Government hardly should have any role in the process excepting acting as conduit pipe nonetheless the Central Government through its Ministry of Law has been making scrutiny of the names selected and recommended and interfering in the process of appointment either by delaying or not forwarding the recommendation for appointment which is most unwelcome and is in derogation of the established practice. It is equally and if not more unwelcome that the Supreme Court collegium has not been that vocal against the government’s conduct until very recently. Whether this attitude of the Central Government is acceptable or not is a matter which requires some more firm rethinking. The process was much simpler when I was invited to become a judge. I wonder if because of such simpler procedure I was so invited to adorn the chair of a Judge in a High Court ! It will be wholly wrong to think however that exclusive power of selection alone will or can ensure independence of judiciary. Independence of judiciary also implies that judiciary should be free from influence and interference of executive. Executive tends to detest freedom and independence of judiciary and tries first to influence and then interfere in the functioning of judiciary by very many dubious means to convert judiciary into an extension of executive, if possible. Some of those who are ultimately appointed as judges also betray the independence facilitating the passage of executives’ influences and interference in the judiciary adversely affecting quality of democracy. <\/p>\r\n<p style=\"text-align: justify;\">Since sometime past lobbying for being appointed as judge has assumed some kind of practice adopted by the undeserving candidates as minimum qualification for being appointed as a judge of High Court for an advocate is only ten years of practice. If ten years is calculated from the date of enrollment of an advocate irrespective of his effective practice in law, then it is likely to be disastrous. That is why length of practice is also weighed along with an advocate’s graph of yearly professional income and acknowledged standard of practice along with his reputation as an upright advocate otherwise. All these can also become variable depending upon the constitution of collegium and collegium’s discretion at particular points. Yearly professional income can also be inflated by dubious methods. To avoid variability and indiscretion a well thought out standard needs to be objectively fixed for selection. What happens in the case of elevation to the Supreme Court was not known until very recent time. My mentor legendary scholar and lawyer Mr. Subrata Roychowdhury, Barrister-at-law and Senior Advocate at a point of time was reasonably influential in the corridors of Supreme Court. He was very much respected by the successive Supreme Court Chief Justices including Justice Y. V. Chandrachud and Justice P.N. Bhagwati because of his vast contribution to international law. In 1980s I saw a very competent and upright Calcutta High Court Judge requesting Mr. Roychowdhury to talk to the then Chief Justice of the Supreme for his elevation to Supreme Court. In the recent period a Supreme Court Judge in response to my query told that the most important person in the matter for elevation to Supreme Court is the Chief Justice of Supreme Court. This view of the particular judge was expressed before 2016. His whisper that the Chief Justice of India needs to be pleased could only make me unhappy. I have also seen how an aspiring High Court Chief Justice used to go all out to please the Chief Justice of India whenever CJI was in Kolkata on whatever occasion. There has also been criticism of the Collegium system both within and outside Supreme Court and High Court. Two Supreme Court Judges of recent period, e.g. Justice Ruma Pal, and Justice Chelameswar had openly criticized the Collegium system. Justice Pal criticized after she retired whereas Justice Jasti Chelameswer did so before his retirement. They said that in the collegium’s meeting there was hardly any discussion on merits of the proposed names, whether for the appointment to Supreme Court or for the appointment to High Courts. And they also said that there was also no transparency in the system. After these criticisms the Supreme Court collegium has started releasing the names recommended and also very unhappy practice of disclosing reasons for rejecting other names recommended by the collegium of High Court. In 2009 in an open letter addressed to the Honble Governor of West Bengal and the Honble Chief Minister of West Bengal I had expressed my anguish over the Chief Minister Buddhadeb Bhattacharya’s indiscretion in disclosing the reasons of his objections to two recommended names of two young advocates for elevation to the print media The Telegraph (5th January, 2009). The names recommended but not selected for elevation, in my view, need not be published as disclosure of such names involves question of some reputation of young advocates. Not only the members of the judiciary (including the members of the bar) but also the members of the society at large are still not happy with the present state of transparency brought about by Supreme Court. <\/p>\r\n<p style=\"text-align: justify;\">Independence of Judiciary is an oft quoted refuge which is cited at the bar. Is Indian judiciary that independent? The greatest enemy of independence of judiciary is the executive and more so when the executive becomes more active in politicizing the judiciary. Executives would love to see that there is no judicial restraint on any of its activities whether at central level or at state levels. They tend to think judiciary to be a devil who is after the executive’s blood and therefore sooner the judiciary can be controlled, if not made fully subservient to the executive, it is better. It is however now well established in the eyes of public at large that only the judiciary as an arbiter can rescue them from their unjust deprivations. Elimination of that role of judiciary would tend to bring in autocracy through majoritarianism as from majotarianism autocracy is to only a short slide backward. Judiciary and the judicial process have been interfered with and influenced by the executives with or without the assistance of the members of bar. Integrity of advocates is also very much critical and crucial to much cherished independence of judiciary. There are instances where the members of the bar have been used by the executives as vehicles to have access to the judiciary and more-often than not to the judicial process to pollute the system. The chariot of politics sometime boastfully and openly move and most often stealthily do so to politicize every sphere and part of judiciary. Independence of judiciary often is further viciously compromised by the members of the Bench (Judges) by their not that too opaque conduct while administering and dispensing justice. That conduct is also polluted by their bias giving rise to suspicion of all kinds. <\/p>\r\n<p style=\"text-align: justify;\">In April, 2018 a very unhealthy and embarrassing incident took place within the precincts of Supreme Court of India which never happened before. Four senior most Judges of Supreme Court called the press to express their grievances against, alleged high handedness of the Chief Justice of India (Justice Dipak Misra). The grievances were principally twofold. Their first grievance was that the Chief Justice was not following any discipline in the matter of allotment of cases for hearing to the other Judges of the court. The second grievance was more serious which was that the Chief Justice was allotting important cases bypassing the benches presided over by the senior Judges to relatively selective junior Judges and the Chief Justice without holding deliberation with the Judges was preparing the roster of cases in a very selective manner. The allegations delivered fuel to some of the opposition parties’ desire to impeach Chief Justice Dipak Misra which ultimately ended in a fiasco. The chairman of the Upper House of the Parliament (The Vice-President) i.e. Rajya Sabha rejected the proposal of a few members for impeachment of Chief Justice of India. Subsequently, when such rejection of the Vice President was challenged in the Supreme Court the challenge itself was advisedly withdrawn. Now it has however been reestablished by Supreme Court in Campaign for Judicial Accountability vs Union [(2018) 1SCC 196][8] that the preparation of the roster of cases is the exclusive prerogative of the Chief Justice only. The indiscipline of four judges was however not taken very kindly by the people concerned as their grievances should have been amicably resolved internally. The Chief Justice of High Court also determines the roster but he normally takes opinions of two senior most judges although he is not obliged to do so. <\/p>\r\n<p style=\"text-align: justify;\">In early 2023 two high ranking executives of central government viz. the Hon’ble Vice President of India Mr. Jagdeep Dhankhar and the Hon’ble Law Minister Mr. Kiren Rijiju launched a two prong attack against the existing procedure of selection for appointment of judges in the higher judiciary. Such invasion must not be taken by the judiciary as temporary aberration of executive. The judiciary must also be ready to face more such and other invasions in the line of present Israeli Prime Minister Benjamin Netanyahu’s proposed judicial reform to balance power between the executive and judiciary so that the elective government is not constrained by the courts. Mr. Rijiju lately criticised the judgement of Supreme Court in Third Judges Case which had held that both Ninety-ninth Amendment to the Constitution and NJAC Act were ultra vires. He has moved on to opine further that selection of judges by collegium system suffers from opacy and the judges are not accountable to anyone as judges do not contest election or face public scrutiny. On the other hand Mr. Dhankhar has questioned the correctness of the judgement of Supreme Court in Kesavananda Bharati vs State of Kerala (1973) which had held that the power of Parliament to amend Constitution (Article 368) was not absolute and basic structure of our constitution was not amenable to Parliament’s said power. Basic structure and framework of Constitution are constructed with some basic features including (i) fundamental rights under Part III of the Constitution and (ii) independence of judiciary. According to Mr. Dhankhar as the representatives elected by people constituting Parliament are answerable to people they are and must be all powerful and its power to amend Constitution cannot admit any kind of restriction or limitation whatsoever and therefore classification of some features of Constitution as basic feature and designating them as unamenable to Parliament’s power to amend cannot be accepted. His charge boils down to denying constitutional courts’ power to “judicially review” any legislative action of Parliament including its power to enact Ninety-ninth Constitution Amendment Act and NJAC Act. He went on to opine that “If any institution on any basis strikes down the laws passed by Parliament, then it will not be good for democracy and it could be difficult to say we are a democratic country” and further that “the executive is ordained to be in compliance with the constitutional prescription emanating from Parliament. It was obliged to adhere to the NJAC and that judicial verdict cannot run it down.” He characterised the Supreme Court judgement on NJAC Act as glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people. Lok Sabha Speaker OM Birla supplemented Mr. Dhankhar’s statement by saying that “judiciary was expected to follow separation of power mandated by the constitution” implying that the judiciary was guilty of over activism in respect of NJAC Act. The present invasion of both executive and legislature and that too almost in unison against judiciary deserves and calls for a legitimate revisit to independence of judiciary. The two honourable members of the Executive however need to be humbly told that (i) Parliament is neither sovereign, nor is supreme; (ii) what is supreme in Indian constitutional structure is the Constitution and none of the three wings of governance is; (iii) in the backdrop of revealed propensities of executives and parliamentarians the quintessential feature of our constitution is basic feature doctrine justifiably propounded by Kesavananda Bharati which is to be regarded as the life line of Indian Constitutional system and is to be seen as inviolable more particularly when high expectations of the Drafting Committee of the Constituent Assembly have been belied by the realities of performance of the members of the Parliament; (iv)Members of Parliament being elected are not all powerful or constitutionally empowered to legislate in disregard of constitutional provisions.<br \/>____________________<br \/>[1] (2018) 1SCC 196<br \/><br \/>The pathetic performance of members of Parliament is replete and reflected in (a) excessive number of legislations passed in the Parliament because of simple absolute majority; (b) almost negligible time taken in Parliament to convert a bill into law in utter disregard and disrespect of parliamentary procedures for legislation; (c) absence of any or any fruitful debate taking place before a bill is passed; (d) disproportionate number of ordinances passed as against the number of bills passed; (e) minimum number of bills sent to select committee; (f) number of days in a year Parliament effectively sit and matters discussed. In 2021 during its monsoon session Parliament could not function for more than 1\/4th of its time because of unruly atmosphere in Parliament. Most of the bills were got passed without any debate at all. About 14 bills were passed in less than ten minutes. None of 15 bills was sent to select committee. Between 2014 and 2021 the government passed 76 ordinances without taking recourse to presenting bills. Between 2014 and 2020 the Prime Minister spoke in the Parliament only 22 times meaning thereby 3.6 times in a year. Although on May 20, 2014 Mr. Narendra Modi, then the Prime Minister designate bowed and touched his forehead on the steps of the entrance of Parliament but as Prime Minister he can now be said to be a reluctant parliamentarian. And all Hon’ble executives were necessarily from the parties constituting ruling majority in Parliament! The aforesaid records speak volume of the Hon’ble members’ regard for constitutional provisions and their responsibilities as people’s representatives towards the people they represent in the Parliament. In the Parliament 39% (116) of Bharatiya Janata Party’s winning candidates in 2019 had criminal cases against them and 57% (29) of Congress Party’s winning candidates had criminal records. The recent budget (2023-24) got passed without any debate because the Parliament has not functioned at the instance of treasury benches. All these are tragic evidences of utter anti-democratic practice to say the least.<\/p>","content_html":"<p><img src=\"\/storage\/app\/media\/BimalChatterjee-100.jpg\" alt=\"\" width=\"100\" height=\"121\"><br><strong>Bimal Kumar Chatterjee<br><\/strong><strong>Barrister-at-Law<br><\/strong><strong>Sr. Advocate & Former Advocate General of State of West Bengal<br><\/strong><\/p>\n<p style=\"text-align: justify;\">A free and an independent judiciary is concomitant of democracy. In sovereign India Constitution is Supreme. In interpretative exercise on provisions of Constitution of India, the doctrine of \u201cbasic structure\u201d propounded by Supreme Court in Kesavananda Bharati vs State of Kerala[1](1973) 4 SCC 225 is the North Star.\u00a0<\/p>\n<p style=\"text-align: justify;\">It may sound both queer and paradoxical that Indian Judiciary is largely free but may not be that independent. It is usually found to be free while discharging its primary duty of adjudication of disputes brought before it in one way or another according to its knowledge of applicable laws, its sense of justice and judicial conscience and its decision is expressed with reasons conforming to the established principles of judicial discipline. It has no licence to be whimsical or biased or non-transparent in discharge of its said most essential duty. Widely acknowledged and accepted principles of judicial discipline including the discipline of hierarchy operate as judiciary\u2019s self-imposed restraints which are otherwise known as judicial virtues. Its freedom to decide therefore is not absolute. In settlement and enunciation of judicial virtues no outsider has any role to play. Principles of judicial restraints are in-house insulation intended to insulate the boundaries of judicial activities to prevent any kind of seepage to preserve purity and independence of its justice dispensation. The standard and density of such insulation to turn judiciary into an exclusive fortress gets off and on tested over time. If such insulation happens to be porous or turned porous for any internal reason the polluting forces both private and public from outside are likely to facilitate incursion into the said fortress to further weaken the state of insulation now and then ultimately adversely affecting judiciary\u2019s both independence and freedom of adjudication and in turn justice dispensation. Therefore, by all means insulation resistance of judiciary is required to be kept and maintained at high standard at all-time which also gets tested every now and then. If freedom of and independence in adjudication is lost, the freedom and independence of judiciary is also lost and once its freedom and independence is lost it may not be possible for judiciary to regain it again or at all. The lost freedom and independence may also not admit of any measurement by any means. And that is why judiciary continuously aspires and strives to be and remain free and independent and that is why also sometime it is said that freedom and independence of judiciary is elusive if not illusive. The need of judiciary\u2019s freedom and independence has been haunting Indian judiciary since very inception of Indian State as an independent democratic polity and at present is under serious threat.<\/p>\n<p style=\"text-align: justify;\">The basic fabric of freedom and independence of judiciary is knit by the Constitution and enactments made from time to time interlacing the said fabric to render it stronger. The freedom of judiciary is reflected in availability of its jurisdiction and power to review and decide freely any dispute brought before it irrespective of their nature and character unless the Constitution or any other law for the time being in force expressly bar judiciary from entertaining and adjudicating some certain kinds and areas of dispute. Of all its powers the most riveting power of judiciary is its power of judicial review but the power of judicial review should not be interpreted as judicial supervision or superintendence over legislature and only unconstitutionality should warrant intervention of judiciary but not to replace democracy with judicial paternalism.\u00a0<\/p>\n<p style=\"text-align: justify;\">It is trite that the cause of any dispute is any kind of conflict of interest in society. The nature of disputes brought for adjudication before judiciary may broadly be divided under four heads and they are: (i)between an individual and another individual; (ii) between an individual and a group of individuals; (iii) between a group of individuals and another group of individuals; and (iv) between an individual or individuals and the State.<br><em>__________________<br><\/em>[1] (1973) 4 sec 225<\/p>\n<p style=\"text-align: justify;\">There however exist possibilities of variations within the aforesaid broad classification. In human society the spectrum of disputes is vast if not endless and the judiciary is chronically infested with those disputes needing their judicial and judicious treatment.\u00a0<\/p>\n<p style=\"text-align: justify;\">The issue of independence of judiciary necessarily and inevitably gives rise to a few smaller but significantly important questions, such as (a) independence from whom? (b) independence from what? (c) is it from fear and\/or from influence and\/or interference? (d) is it from prejudices and\/or bias and\/or self-interest and\/or conflict of interest and\/or from some expectations?\u00a0<\/p>\n<p style=\"text-align: justify;\">If the question of independence is from prejudice and\/or bias and\/or self-interest and\/or conflict of interest and\/or from some expectations, the answer to the question must rest on individual adjudicating authority\u2019s personal propensities and preferences. In the event of the individual adjudicating authority\u2019s propensities and preferences defeat or tend to defeat in any way the much cherished independence of judiciary appropriate punishment or penalty therefor having regard to the gravity and proportionality of offences broadly brought under the heads \u201cmisbehaviour\u201d and\/or incapacity have been crafted first by the Constitution [Article 124(4) read with Article 217(1)(b)] and then by the Judiciary itself by its practice. Indian Constitution has made provisions for removal of any adjudicating authority of High Court and Supreme Court by \u2018impeachment\u2019. Impeachment means a process followed in deciding whether a person in a position should be removed from his such position. It must however be remembered that ultimate punishment of removal by impeachment happens to be a very lengthy and hazardous process [Article 124(4)]. In not a single case so far the process of impeachment could be successfully concluded resulting in removal. In two cases of financial misbehaviour and\/or misconduct the concerned judges of two High Courts (Justice Soumitra Sen of Calcutta High Court and Chief Justice A. M. Bhattacharya of Bombay High Court) apprehending impeachment resigned before the process could be commenced. In some other case of misconduct including financial misbehaviour (in the case of Justice V. Ramaswami of Supreme Court) the process for impeachment failed because of awful division on political party lines within the members of Parliament as required number of votes in favour of impeachment could not be mastered. For misconduct and\/or misbehaviour of lesser gravity Constitution itself has crafted \u2018transfer\u2019 (Article 222) of an adjudicating authority from one High Court to another or withdrawing him from judicial work. Sometime judges of High Court apparently guilty of impropriety have been shunted or removed from judicial work by the Chief Justice of that High Court. In all these cases offences of misconduct and\/or misbehaviour can be said to be apparent. The cases where misconduct and\/or misbehaviour are not apparent fail to attract punitive action and there lies more danger.\u00a0<\/p>\n<p style=\"text-align: justify;\">If the question of independence of judiciary happens to be from fear and\/or influence and\/or interference, then the issue assumes larger implications having a more serious and wider perspective including from constitutional point of view. Then the issue brings us to the floor of constitutional provisions which have a direct link to the political philosophy popularly known as \u201cseparation of powers\u201d. The British journalist and political philosopher Walter Bagehot (1826-1877) in the context of unwritten constitution of Great Britain had pleaded for a system of non-interference by the legislature, the government and the judicial officers to make each wing independent from another. Following the said system of non-interference Indian constitution for the country\u2019s governance has provided separately (i)a functional executive i.e., government, (ii) a legislature i.e., a parliament and (iii) a judiciary i.e., Supreme Court for the Union at the centre. Similar arrangement of three separate wings has also been made for each state of India at state level. It is needless to say that the executive i.e., the government is only an agent of Sovereign State and so are the legislature and judiciary. However, for exclusive purpose of upholding fundamental rights under Part III of the Constitution the \u2018State\u2019 includes all governments and legislatures and all local and other authorities but not the judiciary (Article 12). Each of these three wings of Sovereign State has been made separate and independent of each other by the Constitution so far as their areas of power and functioning are concerned. Executive i.e., the government for the time being is empowered to execute its declared policies as to how it will run or govern the country. Legislature is empowered to legislate laws according to those declared policies to help the said government to execute its said policies applying the said laws. Judiciary is empowered to adjudicate all kinds of disputes arising during execution of those policies. The object of the scheme of arrangement is to facilitate participative democracy. The separation of powers of three wings of Sovereign State is expected to ensure that none of the three wings crosses the demarcating line of their respective powers and areas of functioning existing between them. Each wing however is sovereign exercising its powers delineated by the Constitution which is supreme. None of the wings is supreme as each of them is subordinate to Constitution.<\/p>\n<p style=\"text-align: justify;\">There has always been a fair and also unfair amount of accusation by both executive and legislature against judiciary of crossing its demarcating line or \u201cLaksman Rekha\u201d which accusations are all encapsulated under the loose expression \u201cjudicial activism\u201d. Very recently judiciary has been accused of transgressing its Lakshman Rekha in the matter of Anoop Baranwal vs Union of India popularly known as Election Commission judgement delivered on 3<sup>rd<\/sup> March, 2023 and reported in (2023) SCC OnLine SC 216[2]\u00a0laying down how Chief Election Commissioner and other commissioners are to be appointed in the teeth of the provisions of Article 324(2) which provide a constitutional command to Parliament to enact a law in this regard but has failed so far in taking recourse to such step in disregard of that command. The issue is being wastefully debated forgetting the fact that parliament so long ignored the constitutional command and further that the aforementioned judgement is to be followed so long no law is enacted by the Parliament covering the field. Judiciary\u2019s \u2018act of cutting down\u2019 over-activism of executive and of legislature to their respective limits drawn for each of them by the Constitution is popularly known as judicial activism. Judiciary\u2019s all such activisms however have not been subject matters of their accusations. Accusations are levelled principally against judiciary\u2019s those activisms (or over activism) i.e., when judiciary, according to them, is found to be overstepping or tending to overstep into the arena either of legislature or of executive or of both legislature and executive. Presently the Supreme Court has engaged itself in hearing the issue of permissibility of same sex marriage which necessarily involves a question as to whether the matter should be left for the Parliament to decide. It is the duty of judiciary to activate itself whenever the executive is found to be exercising powers beyond four corners of its powers assigned to it by the Constitution. Similar situation may also arise in the case of legislature when legislature is found to be exercising powers while legislating beyond the limits of its powers assigned to it by the Constitution. In those situations, judiciary is to act as an arbiter in respect of the dispute arising between the fixed constitutional bounds on the one hand and on the other the impugned acts either of executive or of legislature with a view to ensure strict observance of constitutional provisions by any of the other two wings of the Sovereign State always keeping in mind the most sacred and inviolable principle of Supremacy of Constitution. The motto of judiciary as an arbiter is to preserve the sanctity of constitutional provisions and to prevent any breach in observance of those provisions by any including the executive and legislature.\u00a0<\/p>\n<p style=\"text-align: justify;\">When and how the executive and\/or the legislature for the time being will take recourse to influencing and\/or interfering with the judiciary and how the judiciary will react to those attempts to influence and\/or interference does not admit of any predictability and hence constant vigilance by the judiciary to guard itself from such sinister attempts to influence and\/or interfere is a sine qua non for judiciary\u2019s all time independence.\u00a0<\/p>\n<p style=\"text-align: justify;\">Independence of judiciary although depends on number of factors but primarily and more importantly depends on quality of the members of the judiciary i.e., first of the judges and then of the advocates. To ensure desired quality of judges the process of selection for recommendation to the post of judges assumes most importance and must therefore necessarily be made with flawless (if possible) investigation as far as humanly possible about the antecedents of the candidates offering themselves or chosen for selection. Even full proof investigation into antecedents of the candidates may not also shade any real light on a candidate\u2019s future propensities and preferences which he might later develop as a judge including for post-retirement expectations.\u00a0Realities of our experiences in the post-independence period may conservatively lead us to classify judges from the point of view of integrity generally under two broad heads, namely (i) Justice A. N. Ray variety and (ii) Justice H. R. Khanna variety. People acquainted with the history of Indian judiciary\u2019s activities and its performance should be able to reconnect themselves to the names of these two Supreme Court judges of 1970s. Briefly, Justice Roy disregarding well established judicial discipline of seniority rule for promotion agreed to supersede three judges senior to him to become Chief Justice of India on 26<sup>th<\/sup> April, 1973 at the behest of the then executive. Prime Minister Indira Gandhi being disqualified from Parliament by Allahabad High Court finding her guilty of corrupt electoral practices in the elections of 1971 preferred an appeal to the Supreme Court and obtained a partial stay on 24<sup>th<\/sup> June, 1975 from a vacation bench allowing her only to continue as Prime Minister but barring her from voting in Parliamentary proceedings. The day after i.e., on 25<sup>th<\/sup> June, 1975 she had caused to be declared a National Emergency on grounds of internal disturbance under Article 352 of the constitution. During the period of emergency Article 329A was brought by Thirty-ninth Amendment to Constitution providing that the elections of Prime Minister and the Speaker could not be challenged in a court of law. On 7<sup>th<\/sup> November, 1975 a 5-Judge Bench of Supreme Court headed by the then Chief Justice of India Mr. Ray unanimously upheld Mrs. Gandhi\u2019s 1971 election [(1975) Supp SCC1][3]. Article 329A was subsequently omitted by the Forty-fourth Constitution Amendment Act of 1978. Justice Khanna was superseded (by Justice M. H. Beg) who alone had upheld that fundamental rights of citizens guaranteed under Constitution could not be suspended even during emergency [ADM Jabalpur vs Shukla (1976) 2SCC 521][4]. Justice Khanna had said that no one should be deprived of liberty and life and Haveas Corpus writ could not be denied. There is no need for dredging up the sad stories of those black days of Indian judiciary. Which candidate is likely to fall under which head and on which side of the scale between the two opposite varieties also does not admit of any prediction at the time of selection. There is also a third variety of more recent origin who look forward to some kind of reward either in their post-retirement period or during the currency of their tenure and act accordingly during their tenure of judgeship to please those who are likely to be helpful to him in receiving the award and unfortunately their number perceptively is on the rise since sometime past both in High Courts and also in Supreme Court. Very recently quite unprecedentedly a judge during his tenure as a Supreme Court Judge profusely showered in public words of eulogy on Hon\u2019ble Prime Minister of India. It is a matter of regret that speculative rumours are doing their rounds in the corridors of courts that (i) the concerned Supreme Court Judge received his post retirement award and (ii) a Chief Justice of India in not a very distant past got all support from a particular member of High Court collegium in recommending the name of the concerned Chief Justice\u2019s lawyer sister to the post of a judge of the High Court and the concerned member of the collegium had got elevated to the Supreme Court.\u00a0<br>____________________________<br>[1] (2023) SCC OnLine SC 216<\/p>\n<p style=\"text-align: justify;\">It is now a matter of few decades that the issue as to who should \u2018select\u2019 candidates for the post of judges of High Courts and of Supreme Court has given rise to some controversy, both legitimate and illegitimate. Constitution (Articles 124(2) and 217) of India says that the judges are to be appointed by the President who is the head of the executive at the centre. The President, according to Constitution, is also to act in accordance with the aid and advice of the Council of Ministers with Prime Minister at its head (Article 74). Constitution is however silent as to who will select. Rule of law, as opposed to rule of men, as a sine qua non must be established to achieve the glorious objectives set by the Constitution for securing to all citizens justice, social, economic and political, irrespective of their religion, race, caste, sex and place of birth. High expectations of the Hon\u2019ble members of the Drafting Committee of Constituent Assembly from future members of three wings of governance later faced unpleasant if not shocking realities mandating the essential need of independence and integrity of judiciary. M. C. Setalbad, the first Attorney General of independent India (1950-1963) as Chairman of 14th Law Commission had commented that he heard bitter and revealing criticisms about the appointment of judges as they were inducted by executive influence. The Hon\u2019ble Justice Pandian in Supreme Court Advocates-on-Record vs Union of India (1993) referred to Biblical apologue of Solomon\u2019s throne supported by lions on both sides to make the matter simple for our understanding. (I) Whether present day\u2019s Solomon\u2019s throne (symbolising the majesty of our justice system) is fully supported by the Lions (symbolising the legislature and executive on both sides) and (II) whether the \u2018Lions\u2019 are still under the throne or above the throne are two critical questions in determining independence of judiciary which Justice Krishna Iyer had characterised as \u201cconstitutional religion\u201d. Justice Fazl Ali had said that independence of judiciary is a basic feature of our constitution.<br>_____________________<br>[1] (1975) Supp SCC1<br>[1] (1976) 2SCC 521<\/p>\n<p style=\"text-align: justify;\">Members of executive are most often than not motivated to influence the process of appointment of judges expecting reciprocal loyalty and gratitude from judges to obviate the possible obstruction to their somewhat autocratic design to govern in disregard of constitutional provisions. Executives never like to be told that they are constitutionaly wrong. So also the members of Legislature are awfully proud to proclaim that being elected they have mandate of the people and therefore they are supreme and not answerable to any act of overreaching constitutional provisions.\u00a0<\/p>\n<p style=\"text-align: justify;\">The issue as to who will select the candidates for the post of judges of higher judiciary has been settled by Solomon himself in the case of Supreme Court Advocates-on-Record vs Union of India [(1993) 4SCC 441)[5]\u00a0which is popularly known as Second Judges Case. The Second Judges Case overruled the First Judges Case eg. S. P. Gupta vs Union of India [(1981) Supp SCC 87][6]\u00a0and the Third Judges case (1998) i.e., Special Reference no. 1 of 1998 [(1998) 7SCC 739][7]\u00a0reaffirmed the Second Judges Case. Article 124(2) of Constitution has provided that \u201cin the case of appointment of judge other than the Chief Justice, the Chief Justice of India shall always be consulted\u201d. The law as has been settled by the Second Judges Case is that (a) initiation of the proposal for appointment in the case of Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court; (b) no appointment of any judge to Supreme Court or any High Court can be made unless it is in conformity with the opinion of the Chief Justice of India. In other words the role of Chief Justice of India has primacy in matters of selection of judges of Supreme Court and High Courts but the act of selection may not be in the hands of the Chief Justice of India alone how venerable or wise he may be and that is why what was required was consultation with a plurality of Judges by including in the consultative process not only judges of the Supreme Court but also judges of High Courts. And in any such consultation any intervention of executive has been held to be least welcome to avoid any kind of pollution as possibility of reciprocity through show of loyalty and gratitude to the benefactors cannot be ruled out. Under the constitutional scheme of United States, the issue of \u2018legitimate power of reciprocity\u2019 has been and still is being debated in the matter of appointment of federal judges by the President and confirmed by the Senate and in the last few years a wave of dissatisfaction with the selection process for Federal Judges has been witnessed as gratitude and loyalty have been found to be closely related. U.S. Supreme Court judges have also often shown their respective allegiance to the beliefs of the concerned President appointing them. It has been said by our Supreme Court that when favour is extended in as important as the position of judgeship in the higher judiciary one would best leave it to individual imagination to determine the enormity of the reciprocal gratitude and loyalty. Reciprocity and feelings of pay back to the political executive would be disastrous to independence of judiciary.\u00a0<\/p>\n<p style=\"text-align: justify;\">Since 1993 there had been no serious challenge to this position of primacy of Chief Justice of India until 2014-2015 when the Parliament passed (a) Constitution Ninety-ninth Amendment Act 2014 and (b) the National Judicial Appointments Commission Act 2014 (in short NJAC Act.). Both the Ninety-ninth Amendment Act and NJAC Act were successfully challenged in Supreme Court Advocates-on-Record Association vs Union of India where the Supreme Court declared both the legislations as ultra vires i.e. beyond powers. The respondent Union of India\u2019s prayer for reconsideration of Second Judges Case and the Third Judges case was also turned down upholding primacy of judiciary in appointment of judges as a constituent part of basic feature of separation of powers and further that post appointment safeguards like impeachment was not enough to ensure independence of judiciary.\u00a0<br>_____________________<br>[1] (1993) 4SCC 441<br>[1] (1981) Supp SCC 87<br>[1] (1998) 7SCC 739<\/p>\n<p style=\"text-align: justify;\">The opacy of the Supreme Court Collegium\u2019s decision in the matter of selection of judges of High courts and Supreme Court was under critical attack but now the Supreme Court has sought to meet those criticisms by adopting a policy to disclose the minutes of the meeting of the Collegium recommending or not recommending any name proposed or sent for consideration to the Supreme Court Collegium by the High Court Collegiums. The question of opacy alone however was not the only criticism. Other critics mostly from the legislature and executive have in unison criticized the Supreme court\u2019s exclusive power to select for appointment on the grounds that (i) Constitution itself does not give such power to the Supreme Court, (ii) public will is reflected in the members of Parliament and Parliament alone should have the right to determine by means of its legislative process like any other law enacted to cover other fields, (iii) the Supreme Court judges are not elected representative of the people and therefore cannot be vested with that power otherwise than by law, (iv) Article 124(2) and Article 217(1) of Constitution making provisions for \u201cConsultation with Chief Justice of India\u201d do not clothe judiciary with the exclusive power of selection. In \u201cSupreme Court Advocates-on-Record Association vs Union of India\u201d (1993) to uphold independence of judiciary the Supreme Court\u2019s 9-Judge Bench has held that \u201cafter Consultation\u201d used in two Articles must be taken to be that Chief Justice shall always be consulted and no appointment of any judge to the Supreme Court or any High Court can be made unless in conformity with the opinion of the Chief Justice of India. In other words on the question of selection for appointment of judges in Supreme Court and High Court the opinion of Chief Justice of India has the primacy and to aid the Chief Justice a Collegium of senior most judges of Supreme Court has been made.<\/p>\n<p style=\"text-align: justify;\">The Supreme Court collegium consists of 5 (five) senior most judges of the Court whereas the High Court collegium consists of 3 (three) senior most judges of the court. Briefly the practice and procedure for selection of judges of the High Court so far has been that the Collegium of High Court consisting of the Chief Justice and two senior most pugne judges should first send names selected by them to the Supreme Court for consideration and appointment as judges of that High Court. The recommended names are also sent to the State Government for its consideration. After consideration of the State Government the names move to the Supreme Court\u2019s Collegium for its consideration and recommendation. Once such recommendation is made, the selected names go to the Central Government for on forwarding to the appointing authority i.e., the President and final named persons are appointed as Judges by warrant of the President. In spite of the fact that the Central Government hardly should have any role in the process excepting acting as conduit pipe nonetheless the Central Government through its Ministry of Law has been making scrutiny of the names selected and recommended and interfering in the process of appointment either by delaying or not forwarding the recommendation for appointment which is most unwelcome and is in derogation of the established practice. It is equally and if not more unwelcome that the Supreme Court collegium has not been that vocal against the government\u2019s conduct until very recently. Whether this attitude of the Central Government is acceptable or not is a matter which requires some more firm rethinking. The process was much simpler when I was invited to become a judge. I wonder if because of such simpler procedure I was so invited to adorn the chair of a Judge in a High Court ! It will be wholly wrong to think however that exclusive power of selection alone will or can ensure independence of judiciary. Independence of judiciary also implies that judiciary should be free from influence and interference of executive. Executive tends to detest freedom and independence of judiciary and tries first to influence and then interfere in the functioning of judiciary by very many dubious means to convert judiciary into an extension of executive, if possible. Some of those who are ultimately appointed as judges also betray the independence facilitating the passage of executives\u2019 influences and interference in the judiciary adversely affecting quality of democracy.\u00a0<\/p>\n<p style=\"text-align: justify;\">Since sometime past lobbying for being appointed as judge has assumed some kind of practice adopted by the undeserving candidates as minimum qualification for being appointed as a judge of High Court for an advocate is only ten years of practice. If ten years is calculated from the date of enrollment of an advocate irrespective of his effective practice in law, then it is likely to be disastrous. That is why length of practice is also weighed along with an advocate\u2019s graph of yearly professional income and acknowledged standard of practice along with his reputation as an upright advocate otherwise. All these can also become variable depending upon the constitution of collegium and collegium\u2019s discretion at particular points. Yearly professional income can also be inflated by dubious methods. To avoid variability and indiscretion a well thought out standard needs to be objectively fixed for selection. What happens in the case of elevation to the Supreme Court was not known until very recent time. My mentor legendary scholar and lawyer Mr. Subrata Roychowdhury, Barrister-at-law and Senior Advocate at a point of time was reasonably influential in the corridors of Supreme Court. He was very much respected by the successive Supreme Court Chief Justices including Justice Y. V. Chandrachud and Justice P.N. Bhagwati because of his vast contribution to international law. In 1980s I saw a very competent and upright Calcutta High Court Judge requesting Mr. Roychowdhury to talk to the then Chief Justice of the Supreme for his elevation to Supreme Court. In the recent period a Supreme Court Judge in response to my query told that the most important person in the matter for elevation to Supreme Court is the Chief Justice of Supreme Court. This view of the particular judge was expressed before 2016. His whisper that the Chief Justice of India needs to be pleased could only make me unhappy. I have also seen how an aspiring High Court Chief Justice used to go all out to please the Chief Justice of India whenever CJI was in Kolkata on whatever occasion. There has also been criticism of the Collegium system both within and outside Supreme Court and High Court. Two Supreme Court Judges of recent period, e.g. Justice Ruma Pal, and Justice Chelameswar had openly criticized the Collegium system. Justice Pal criticized after she retired whereas Justice Jasti Chelameswer did so before his retirement. They said that in the collegium\u2019s meeting there was hardly any discussion on merits of the proposed names, whether for the appointment to Supreme Court or for the appointment to High Courts. And they also said that there was also no transparency in the system. After these criticisms the Supreme Court collegium has started releasing the names recommended and also very unhappy practice of disclosing reasons for rejecting other names recommended by the collegium of High Court. In 2009 in an open letter addressed to the Honble Governor of West Bengal and the Honble Chief Minister of West Bengal I had expressed my anguish over the Chief Minister Buddhadeb Bhattacharya\u2019s indiscretion in disclosing the reasons of his objections to two recommended names of two young advocates for elevation to the print media The Telegraph (5th January, 2009). The names recommended but not selected for elevation, in my view, need not be published as disclosure of such names involves question of some reputation of young advocates. Not only the members of the judiciary (including the members of the bar) but also the members of the society at large are still not happy with the present state of transparency brought about by Supreme Court.\u00a0<\/p>\n<p style=\"text-align: justify;\">Independence of Judiciary is an oft quoted refuge which is cited at the bar. Is Indian judiciary that independent? The greatest enemy of independence of judiciary is the executive and more so when the executive becomes more active in politicizing the judiciary. Executives would love to see that there is no judicial restraint on any of its activities whether at central level or at state levels. They tend to think judiciary to be a devil who is after the executive\u2019s blood and therefore sooner the judiciary can be controlled, if not made fully subservient to the executive, it is better. It is however now well established in the eyes of public at large that only the judiciary as an arbiter can rescue them from their unjust deprivations. Elimination of that role of judiciary would tend to bring in autocracy through majoritarianism as from majotarianism autocracy is to only a short slide backward. Judiciary and the judicial process have been interfered with and influenced by the executives with or without the assistance of the members of bar. Integrity of advocates is also very much critical and crucial to much cherished independence of judiciary. There are instances where the members of the bar have been used by the executives as vehicles to have access to the judiciary and more-often than not to the judicial process to pollute the system. The chariot of politics sometime boastfully and openly move and most often stealthily do so to politicize every sphere and part of judiciary. Independence of judiciary often is further viciously compromised by the members of the Bench (Judges) by their not that too opaque conduct while administering and dispensing justice. That conduct is also polluted by their bias giving rise to suspicion of all kinds.\u00a0<\/p>\n<p style=\"text-align: justify;\">In April, 2018 a very unhealthy and embarrassing incident took place within the precincts of Supreme Court of India which never happened before. Four senior most Judges of Supreme Court called the press to express their grievances against, alleged high handedness of the Chief Justice of India (Justice Dipak Misra). The grievances were principally twofold. Their first grievance was that the Chief Justice was not following any discipline in the matter of allotment of cases for hearing to the other Judges of the court. The second grievance was more serious which was that the Chief Justice was allotting important cases bypassing the benches presided over by the senior Judges to relatively selective junior Judges and the Chief Justice without holding deliberation with the Judges was preparing the roster of cases in a very selective manner. The allegations delivered fuel to some of the opposition parties\u2019 desire to impeach Chief Justice Dipak Misra which ultimately ended in a fiasco. The chairman of the Upper House of the Parliament (The Vice-President) i.e. Rajya Sabha rejected the proposal of a few members for impeachment of Chief Justice of India. Subsequently, when such rejection of the Vice President was challenged in the Supreme Court the challenge itself was advisedly withdrawn. Now it has however been reestablished by Supreme Court in Campaign for Judicial Accountability vs Union [(2018) 1SCC 196][8]\u00a0that the preparation of the roster of cases is the exclusive prerogative of the Chief Justice only. The indiscipline of four judges was however not taken very kindly by the people concerned as their grievances should have been amicably resolved internally. The Chief Justice of High Court also determines the roster but he normally takes opinions of two senior most judges although he is not obliged to do so.\u00a0<\/p>\n<p style=\"text-align: justify;\">In early 2023 two high ranking executives of central government viz. the Hon\u2019ble Vice President of India Mr. Jagdeep Dhankhar and the Hon\u2019ble Law Minister Mr. Kiren Rijiju launched a two prong attack against the existing procedure of selection for appointment of judges in the higher judiciary. Such invasion must not be taken by the judiciary as temporary aberration of executive. The judiciary must also be ready to face more such and other invasions in the line of present Israeli Prime Minister Benjamin Netanyahu\u2019s proposed judicial reform to balance power between the executive and judiciary so that the elective government is not constrained by the courts. Mr. Rijiju lately criticised the judgement of Supreme Court in Third Judges Case which had held that both Ninety-ninth Amendment to the Constitution and NJAC Act were ultra vires. He has moved on to opine further that selection of judges by collegium system suffers from opacy and the judges are not accountable to anyone as judges do not contest election or face public scrutiny. On the other hand Mr. Dhankhar has questioned the correctness of the judgement of Supreme Court in Kesavananda Bharati vs State of Kerala (1973) which had held that the power of Parliament to amend Constitution (Article 368) was not absolute and basic structure of our constitution was not amenable to Parliament\u2019s said power. Basic structure and framework of Constitution are constructed with some basic features including (i) fundamental rights under Part III of the Constitution and (ii) independence of judiciary. According to Mr. Dhankhar as the representatives elected by people constituting Parliament are answerable to people they are and must be all powerful and its power to amend Constitution cannot admit any kind of restriction or limitation whatsoever and therefore classification of some features of Constitution as basic feature and designating them as unamenable to Parliament\u2019s power to amend cannot be accepted. His charge boils down to denying constitutional courts\u2019 power to \u201cjudicially review\u201d any legislative action of Parliament including its power to enact Ninety-ninth Constitution Amendment Act and NJAC Act. He went on to opine that \u201cIf any institution on any basis strikes down the laws passed by Parliament, then it will not be good for democracy and it could be difficult to say we are a democratic country\u201d and further that \u201cthe executive is ordained to be in compliance with the constitutional prescription emanating from Parliament. It was obliged to adhere to the NJAC and that judicial verdict cannot run it down.\u201d He characterised the Supreme Court judgement on NJAC Act as glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people. Lok Sabha Speaker OM Birla supplemented Mr. Dhankhar\u2019s statement by saying that \u201cjudiciary was expected to follow separation of power mandated by the constitution\u201d implying that the judiciary was guilty of over activism in respect of NJAC Act. The present invasion of both executive and legislature and that too almost in unison against judiciary deserves and calls for a legitimate revisit to independence of judiciary. The two honourable members of the Executive however need to be humbly told that (i) Parliament is neither sovereign, nor is supreme; (ii) what is supreme in Indian constitutional structure is the Constitution and none of the three wings of governance is; (iii) in the backdrop of revealed propensities of executives and parliamentarians the quintessential feature of our constitution is basic feature doctrine justifiably propounded by Kesavananda Bharati which is to be regarded as the life line of Indian Constitutional system and is to be seen as inviolable more particularly when high expectations of the Drafting Committee of the Constituent Assembly have been belied by the realities of performance of the members of the Parliament; (iv)Members of Parliament being elected are not all powerful or constitutionally empowered to legislate in disregard of constitutional provisions.<br>____________________<br>[1] (2018) 1SCC 196<br><br>The pathetic performance of members of Parliament is replete and reflected in (a) excessive number of legislations passed in the Parliament because of simple absolute majority; (b) almost negligible time taken in Parliament to convert a bill into law in utter disregard and disrespect of parliamentary procedures for legislation; (c) absence of any or any fruitful debate taking place before a bill is passed; (d) disproportionate number of ordinances passed as against the number of bills passed; (e) minimum number of bills sent to select committee; (f) number of days in a year Parliament effectively sit and matters discussed. In 2021 during its monsoon session Parliament could not function for more than 1\/4th of its time because of unruly atmosphere in Parliament. Most of the bills were got passed without any debate at all. About 14 bills were passed in less than ten minutes. None of 15 bills was sent to select committee. Between 2014 and 2021 the government passed 76 ordinances without taking recourse to presenting bills. Between 2014 and 2020 the Prime Minister spoke in the Parliament only 22 times meaning thereby 3.6 times in a year. Although on May 20, 2014 Mr. Narendra Modi, then the Prime Minister designate bowed and touched his forehead on the steps of the entrance of Parliament but as Prime Minister he can now be said to be a reluctant parliamentarian. And all Hon\u2019ble executives were necessarily from the parties constituting ruling majority in Parliament! The aforesaid records speak volume of the Hon\u2019ble members\u2019 regard for constitutional provisions and their responsibilities as people\u2019s representatives towards the people they represent in the Parliament. In the Parliament 39% (116) of Bharatiya Janata Party\u2019s winning candidates in 2019 had criminal cases against them and 57% (29) of Congress Party\u2019s winning candidates had criminal records. The recent budget (2023-24) got passed without any debate because the Parliament has not functioned at the instance of treasury benches. All these are tragic evidences of utter anti-democratic practice to say the least.<\/p>","published_at":"2023-05-27 15:45:00","published":1,"created_at":"2023-05-27 15:26:54","updated_at":"2023-05-27 16:11:20","metadata":null,"ginopane_blogtaxonomy_series_id":null,"seo_title":null,"seo_description":null,"seo_keywords":null,"canonical_url":null,"redirect_url":null,"robot_index":null,"robot_follow":null,"summary":"Revisiting Independence of Indian Judiciary","has_summary":true,"categories":[{"id":34,"name":"\u0986\u0987\u09a8-\u0986\u09a6\u09be\u09b2\u09a4","slug":"legal","code":null,"description":"","parent_id":33,"nest_left":64,"nest_right":65,"nest_depth":1,"created_at":"2019-02-12 14:27:04","updated_at":"2019-03-30 13:00:59","url":"https:\/\/www.banglaworldwide.com\/category\/legal","pivot":{"post_id":1609,"category_id":34}}],"featured_images":[{"id":2340,"disk_name":"6471d77b006e7564097699.jpg","file_name":"Legal-BimalChatterjee-900.jpg","file_size":85607,"content_type":"image\/jpeg","title":null,"description":null,"field":"featured_images","sort_order":2340,"created_at":"2023-05-27 15:42:11","updated_at":"2023-05-27 15:42:16","path":"https:\/\/www.banglaworldwide.com\/storage\/app\/uploads\/public\/647\/1d7\/7b0\/6471d77b006e7564097699.jpg","extension":"jpg"}]} May 3rd pm 31 3:34pm
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