A Lawyer's Zeal for Constitutional Clarity

Shri Asok Pandey (Yes, that is how he writes his name), my good friend, is a public-spirited lawyer and he must have filed more than 200 PILs in the Allahabad High Court and the Supreme Court of India. Some of the judgements on his PILs have now become an integral part of the Indian constitutional study.  His tenacity for the cause that he espouses is seen to be believed.
Recently, he has filed a PIL for the preponing the of the swearing in of the Chief Justice-designate Ranjan Gogoi on the ground that the post of the Chief Justice of India is in continuum and it cannot remain vacant even for a few hours. The incumbent CJI Dipak Misra is retiring on 2nd October, which is a national holiday, being the Gandhi Jayanti. Therefore, the CJI designate will take oath on 3rd October leaving a time gap of many hours between the retiring CJI and the new CJI. 
The fate of the PIL will be known when it is heard and decided by the Supreme Court but what has impelled me to write on it is how does it make any difference in the functioning of the Supreme of India, if the post of the CJI remains vacant for a few hours? After all, the CJI is only administrative head of the Supreme Court. As far as his judicial powers are concerned, S(he) does not have even a whit more powers than the junior most judge of the Supreme Court. 
The Supreme Court and the High Courts are the constitutional courts. Acting Chief Justices are appointed in the High Courts but not in the Supreme. Article 124 of the Constitution of India speaks about the Union Judiciary i.e. establishment of the Supreme Court India and its powers etc., go up to Article147. 
To my mind, the theory of the continuum is applicable for the Prime Minister because if there is no Prime Minister, there cannot be any council of ministers. The council of ministers’ dissolves with the resignation or the death of the Prime Minister. This is the reason is that immediately after the death of the Prime Minister a new Prime Minister is sworn in. Article 74 says, ‘there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
 The President is, therefore, merely a titular head. All powers vested with the Council of Ministers and essentially in the Prime Minister. The President and the Prime Minister do not retire on superannuation as it is in the case of the Chief Justice or the other judges.
Shri Pande has said in his PIL that Justice ND Ojha was sworn in as the judge of the Supreme at the night because he was to retire from the High Court in the midnight of that date. This could, however, not be the reason for his swearing in. Let me cite one example of Justice Fathima Beevi, who retired as the Judge of the High Court on 29th April 1989 and was appointed the judge of the Supreme Court on 6th October 1989, more than five months after her retirement as the judge of the High Court. Fortunately, she is still alive. She had started her judicial career from the lowest rung of the Munsif Magistrate. I have met her two times when she was the Governor of Tamilnadu along with the illustrious Justice (Retd) PB Sawant, who was the then Chairman of the Press Council of India and I was one of its members.
Indian Constitution is, as one of my teachers in the Law Faculty of the Delhi University, used to say, ‘a riddle wrapped in an enigma’. It is a conundrum. Regrettably, even the Supreme Court has not been able to settle the riddle. However, I must appreciate the zeal and vigour of Asok Pande who is trying his level best to provide finality to the grey areas of the Constitution. Kudos to you Asok ji.


Reproduced from Blog ‘Life and Law ‘ and ‘Parokar’

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