Solidarity of judges is crucial, says Upendra Baxi 

All justices of the Supreme Court need sort out their differences and collective judicial solidarity is crucial for maintaining a constitutional republic, says Upendra Baxi, Professor of Law at University of Warwick and former Vice-Chancellor of universities of South Gujarat and Delhi

Is there a lack of balance now between the Executive and the Judiciary?

The relationship between the executive and legislative combine on the one hand and the judiciary have always been asymmetrical and this is precisely what was intended by the Constitution. For, it seeks a limited government and rule of law. I have always said that the distance between Shastri Bhavan (where the Law ministry sits) and Tilak Marg (the seat of the Supreme Court of India) may be geographically small but is Constitutionally vast.

Why has the Government been so hostile to the Judiciary of late ?

Governments do not like justices playing an activist judicial role. Outcries of judicial overreach, constitutional trespass, violation of Lakshman Rekha and even judicial usurpation are often heard. But courts often complain and justifiably because citizens’ rights, enshrined in the Constitution are not very often assured in state action.

When Justices pass orders to secure core human rights, should one complain? For example, the Court waited for 50 years for executive/legislative combine to provide law relative to sexual harassment; having waited this long, it declared such a policy in Vishakha. There are many other examples.

You have gone on record to say that a solution would have to come out of the Supreme Court. Does it look possible ?

I believe that Justices of the Supreme Court should settle the differences among themselves. If they need further discussion, they can have access to the Chief Justices conference.

All CJIs have a very short term of one or two years; some have less than a year or even less. Exceptions of long terms can be counted on fingertips. The present system of elevation follows the convention that the senior most Justice shall be nominated for elevation.

In any solution that is devised, the authority and the stature of the office of CJI should not be impaired; If necessary, a meeting of all Justices may find a satisfactory solution to the formation of the Benches issue; The MoP issue is made more difficult by executive intransigence. The matter should now be handled judicially: the court should simply declare that the procedure they have finalised and sent to the Union Of India shall apply.

Surely it will be even more of a disaster if the Government is allowed to select judges of its choice ?

We did not know how Justices were selected and transferred in the executive appointment system which India had for about four decades. Nor do we know now when the collegium system is used in the appointment of judges. Either way, we have to take the system on trust.

The trust is breached the moment we begin talking about a ‘committed judiciary or supersession of senior justices’.

The SC invalidated a constitutional commission and law concerning judicial appointments and transfers in the NJAC case on the ground that judicial primacy was violated. But it preserved a plenary power in Parliament to propose an alternate commission taking their judgement fully into account. I do not know why this process has not even been initiated so far. Certainly, there is scope for creative experiments.

How do you see the role of the CJI?

The Constitution assigns the role of first among the equals to the CJI. The CJI must at all times carry his/her colleagues. The Brethren must respect the high constitutional office of the CJI but when they believe the CJI is impervious to a fraternal dialogue, a difficult situation arises. Ideally, Justices should not go public, but if after due consideration the voice of conscience compels them to do so, the matter should be amicably settled by the CJI with the help of the full court. Collective judicial solidarity is crucial for maintaining a constitutional republic.