The Constituent Assembly debated the creation and constitution of the judiciary extensively. The debates reflect the fears and desires on the part of many members to keep the judiciary - especially judges of the Supreme Court and High Courts - free from political influence.

B Poker Sahib sought an amendment to Article 103, now Article 124, suggesting the appointment of the Chief Justice of India by the President, “…after consultation with the judges of the Supreme Court and the Chief Justices of the High Court in the States”. He said,

“Now, Sir, in giving this amendment, I wanted to see that the appointment of the judges of the Supreme Court is not in any way affected by political influences..."

Professor KT Shah feared that the President “will naturally do so on advise of the Prime Minister” and felt that this would result in concentration of power in the hands of the Prime Minister. He felt that “there is every danger to apprehend that the Prime Minister may become a Dictator if he chooses to do so”. He suggested,

“I think there are cases which ought to be removed from the political influence, of party manoeuvres. And here is one case, viz., Judges of the Supreme Court, who I think should be completely outside that influence. ”

He even suggested “a constitutional prohibition” against the employment of judges in any executive post during or after retirement to avoid any temptation.

Dr. Ambedkar responded stating, “There can be no difference of opinion in the house that our judiciary must both be independent of executive and competent in itself” and thus suggested “a middle course” empowering the President to appoint judges in consultation with the Chief Justice of India.

While debating Article 39-A, now Article 50, providing for separation of the judiciary from the executive, TT Krishnamachari went to the extent of observing,

“My feeling is that while I have the greatest respect for Dr. Ambedkar's views on this matter, to put the Constitution of the country in a straight jacket by giving undue power to the judiciary at a time when we know that in the matter of recruitment to the judiciary, we are not able to get A Class men at all, is unwise...”

Dr Bakshi Tek Chand warned,

“Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the free administration of justice.”

Clearly, these fears and apprehensions, though made 72 years ago, have turned out to be true.

The fact of the matter is that judges have accepted controversial appointments during and after their retirement. Examples galore: Justice MC Chagla served as Indian ambassador to the United States after his retirement; Justice Bahrul Islam resigned from the Supreme Court to contest elections as a candidate of the Congress; Justice PA Sathasivam was appointed as Governor of Kerala; Chief Justice Ranganath Misra, who had given a clean chit to the Congress for its role in the 1984 anti-Sikh riots, was also elected as a member of the Congress to the Rajya Sabha post-retirement; and most recently, former Chief Justice of India Ranjan Gogoi secured a seat as a member of the Rajya Sabha.

Motilal Setalvad, the first and finest Attorney General of India writes in his book, 'My Life',

“Though Sudhi Ranjan Das was the most distinguished Chief Justices, certain appointments made during his regime were unfortunate and were commented upon adversely.”

He says that the appointment of Justice Govind Menon was “under pressure from High Quarters”, while the appointments of Justices JL Kapur and AK Sarkar “could not have been made based on merit.”

Commenting on the appointment of Justice BP Sinha as Chief Justice of India, he says, “…there was little doubt that his knowledge of Constitution and Constitutional Law was meagre”. He went further to write, “he had also, while in Nagpur earned the reputation of avoiding judgments leaving the task generally to his junior colleagues”, and referred to him as a “shirker”.

Writing about Chief Justice PB Gajendragadkar, Setalvad says, “he carried his zeal to extremes in the apprehension that the exposure of corrupt members of higher judiciary might expose the entire administration of justice”.

He gives an example of a Chief Justice of a State giving false age. Upon being discovered, he was merely asked to resign despite his guilt, on which he comments, “every day responsible persons in the land were complaining in loud voices against growing corruption in high places and it was time, a person so highly placed as Chief Justice should have been properly dealt with if he was really guilty.”

Setalvad commented in The Indian Advocate,

"Like the ostrich burying it’s head in the sand, they seem to believe that by avoiding an enquiry into the allegations against the Chief Justice, they are saving the Higher Judiciary in India. They forget that what they are trying to hide concerns all citizens.”

The Restatement of Values of Judicial Life adopted in the resolution of the Chief Justices’ conference held in September 1992 expressly provides:

“(1) Justice must not merely be done but it must also be seen as done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of the perception has to be avoided,”

Despite this, in the recent past, some judges have openly praised the Prime Minister. Justice Arun Mishra, at the inauguration of the International Judicial Conference 2020, referred to the Prime Minister as an “internationally acclaimed visionary” and a “versatile genius.”

In August 2018, Justice Mukesh Rasiklal Shah, then Chief Justice of the Patna High Court, said in response to a question by a journalist from BBC Hindi about his alleged proximity to the Centre,

“Modi is a model. He is a hero. This is what is being said about him for the past one month. There are thousands of clippings on social media. The papers are also publishing the same, daily”.

Recently, at a function held to release a commemorative stamp on 60 years of the Gujarat High Court, Justice Shah went a step further and said that Prime Minister Narendra Modi is “the most popular, loved, vibrant, and visionary leader”.

The Modi government has a fairly large number of cases in the Supreme Court, and some of them are highly political and sensitive in nature.

What is baffling is that the function at which PM Modi was presiding was a solemn occasion to commemorate the Gujarat High Court completing sixty years. Frankly, such a function should not have taken place in first instance. But then, since 2014, the Supreme Court and the High Courts have been racing to invite the PM under one pretext or the other, completely overlooking age-old tradition to remain aloof of the executive.

Instead of highlighting the outstanding contribution of the Gujarat High Court in the development of law and remembering outstanding judges who adorned its Bench for over 60 years, like Chief Justices ST Desai, KT Desai, BJ Dewan, MP Thakker, AM Ahmadi and the most outstanding Justices SH Seth and PD Desai, the occasion was used by all speakers to praise the Prime Minister.

One is reminded of the famous letter sent by former Chief Justice of India PN Bhagwati to then Prime Minister Indira Gandhi praising her.

How should citizens view this considering that Justice Shah has sat and will be sitting on the bench hearing highly sensitive political cases involving the Modi government? What happens to the age-old principle, “justice must not merely be done but it must also been seen to be done”, re-affirmed in that Restatement? Can citizens be faulted for having doubts about the independence of the judiciary?

Justice Shah is apparently no stranger to political controversies. In June 2020, the Gujarat High Court granted a stay on the Rath Yatra - a ritual of 143 years 0 from Shri JagganathJi Temple in Ahmedabad, and declined to vacate the stay, raising a huge public outcry amongst a section of the people and strong objections by the Mahant of the temple Shri Dilipdasji and office bearers of the Vishwa Hindu Parishad.

Justice Shah visited the temple on June 24 and made a public statement, saying,

“The high court order is in public interest. Between public interest and faith, public interest is more important. Faith is certainly there, but we also have to take care of the public interest and public simultaneously. According to me it (HC order staying the procession) is perfect”.

To say the least, it was grossly improper on the part of a sitting Supreme Court judge to make such a statement. Why it was done at all is a mystery. After that, only a symbolic Rath Yatra was taken out on June 24, 2020, within the precincts of the temple. And the controversy died down.

However, while hearing the petition by actors, directors, producers and writers of Amazon Prime web series Tandav challenging criminal proceedings in respect of the said show, Justice Shah had observed that “the religious sentiments cannot be hurt”.

Such conduct on the part of judges can seriously affect people’s faith in the impartiality of the judiciary and can erode the credibility of the great institution that the Supreme Court is.

The Author is a Senior Advocate and Former President of the Supreme Court Bar Association.