With Bombay HC’s Chief Justice Waghela’s retirement, is it time to consider longer, fixed tenure?

The Bombay High Court’s Chief Justice, DH Waghela retires today, less than six months after he was sworn-in on February 15. CJ Waghela’s appointment came five months after the former Chief Justice, Mohit Shah retired; Shah J’s tenure lasted for a little over 5 years..It has been a largely unexceptional tenure, but once the circumstances of his tenure are taken into account, one discovers a larger problem plaguing the higher judiciary – that of administration and tenure..When it comes to the Bombay High Court, of the last ten Chief Justices, only Anil Dave and Kshitij Vyas JJ have had a shorter tenure than CJ Waghela. Dave J was elevated to the Supreme Court within two months of his appointment (as were seven of the last ten Chief Justices) while Vyas J was Chief Justice for roughly five months..In fact, there was some talk about CJ Waghela being elevated to the Supreme Court; his name was considered for the first time by the Supreme Court collegium in 2014..Justice Waghela the lawyer.Originally from Rajkot in Gujarat, CJ Waghela completed his law from Saurashtra University in 1975 and went on to do his LLM from the same university. He started his own practice in 1978 and practiced exclusively in Labour and Industrial courts for several years, before shifting his practice to the Gujarat High Court in 1990..Nine years later, he was elevated to the Bench. In March of 2013, he was transferred to the Karnataka High Court..While in Karnataka, the Advocates Association of Bangalore sought his transfer to “any other High Court” in the country. But then again, the AAB had also passed a similar resolution against the then Chief Justice, Vikramjit Sen..In June of 2015, he took over as Chief Justice of the Orissa High Court. It was a tumultuous time; he faced a boycott by members of the Bar Association of Orissa in October..Eight months into his stint as Orissa Chief Justice, he was made the Chief Justice of the Bombay High Court. His appointment came at a time when the then Acting CJ of Bombay, Vijaya Tahilramani J. had been ACJ for almost five months. .Justice Waghela and the Bar.The length of CJ Waghela’s tenure at Bombay has certainly caused some discontent within the Bar. Senior counsel and President of the Advocate’s Association of Western India, Rajiv Chavan told Bar & Bench,.“I will certainly say one thing that in a premier High Court like Bombay, Supreme Court must take care to send a Chief who has a tenure of more than a year..Everyone does judicial work but there are many decisions that are vital as far as court’s administration is concerned and for that six months or even one year is too short a period.”.Senior counsel, and former Advocate General of Maharashtra, Ravi Kadam also spoke about CJ Waghela’s appointment. .“I think it’s a mistake to send somebody as a Chief Justice for what is virtually a stop-gap arrangement. This cannot be done to any High Court, much less to the Bombay High Court.”.The President of the Bombay Bar Association, Senior Advocate Milind Sathe echoes a similar sentiment..“This appointment demonstrates the problems of transferred Chief Justices, this short tenure does not help in any way. Transferred Chief’s do not know the culture, traditions, heritage of the court and the bar and that can have a very negative impact.”.“He effectively sat for one session as a full fledged court. It was a very short tenure, so there was no time for any real assessment. Although both in Karnataka and Orissa there were strike calls against him by Bar Associations, but we did not have any time to assess.”.Senior counsel Sathe’s “one session” refers to the practice of CJ Waghela’s brief stint in a Division Bench with Sonak J. Thereafter, the Chief Justice would sit singly, barely three months after he took oath. In fact, the Chief Justice has been hearing matters from his chamber since then, and has stopped conducting proceedings in open court..Tenure and High Court administration.In the current structure of Indian courts, the Chief Justice is the administrative head of the court. And in a High Court such as Bombay, this would surely be a time-consuming task. Not only that, but it is only expected that a Chief Justice would require some time to familiarise herself with the local conditions..Is such a short tenure, such as that of CJ Waghela, desirable?.Stability of tenure is an issue which came up before the executive when the Department of Justice, Supreme Court and the High Courts recommended a two year fixed term for high court Chief Justices. The recommendation was made while a revised Memorandum of Procedure was being drafted. .However, the government took a view in April this year that those nearing the retirement age of 62, who may be otherwise deserving, will miss out if the tenure is fixed..Former Supreme Court judge, Santosh Hegde J dealt with this particular issue, observing that,.“Fixed tenure is good because of the fact that continuity will give some possibility of making certain changes for better. .This 20-day Chief Justice is just for the purpose of having a ‘former chief justice’ tag attached and beyond that there is no good.”.Perhaps the executive needs to reconsider the recommendations for fixing the tenure of those who head the country’s High Courts. For if a fixed tenure is a feasible solution, then it surely deserves another look..After all, it was the view of the Department of Justice that a fixed tenure would help Chief Justices concentrate on the administrative side, ultimately leading to greater court efficiency.