Reportedly (https://theprint.in/india/job-in-assam-foreigners-tribunal-depends-on-conviction-rate- says-civil-rights-group-report/294030/), in Assam’s Foreigners Tribunal, the renewal of annual contract of its Members depends upon the ‘conviction rate’. In other words, it means that if the members of the Foreigners Tribunals declare a higher number of persons as foreigners, higher are their chances of being retained (https://www.thehindu.com/news/national/other-states/assam- decides-tribunal-members-term-on-rate-of-declaring-foreigners-amnesty/article31051919.ece) on their posts. Elsewhere, (https://adminlawblog.org/2020/03/26/talha-abdul-rahman-indias-administrative- citizenship-regime/) I have criticised Foreigners Tribunals in Assam for a variety of reasons, including being an affront to decisional independence.
‘Decisional Independence’ is a facet of ‘independence of the judiciary’ where every individual judge is (expected to be) insulated from external forces that may influence her decisions. This includes factors that may move her conscience to please the Government or a party to the litigation. As a doctrine, this even requires a judge to be able to think and apply her mind independently from other judges on the bench. Thus, when members of the Foreigners Tribunals are expected to have a certain ‘conviction rate’ just to be able to remain in employment or are expected to please the body ‘supervising’ their function, it naturally means that their decision making process lacks the required hallmark – independence. This fear of ‘reprisals’ for deciding cases according their conscience denudes the legal system of its legitimacy.
The situation of a member of the Foreigners Tribunal whose contract is not renewed and the situation
of Justice Pushpa Ganediwala whose judicial appointment to be made permanent has been withdrawn by Supreme Court (https://www.barandbench.com/news/litigation/pocso-judgments- supreme-court-collegium-withdraws-recommendation-make-bombay-high-court-judge-pushpa-
ganediwala-permanent) is qualitatively comparable. A judge cannot be punished for wrong judgments which are otherwise within her jurisdiction. This is because when a judgment is bad, there are ways to have it corrected. I have no quarrel that the reasons given by Justice Ganediwala’s judgment in her judgment in the recently reported POCSO Cases are perverse – and in the same breath, all of us can count at least half a dozen other judgments of High Courts and Supreme Court whose reasoning we find perverse. However, to punish a judge for taking a particular view on the matter is not supported by the Constitution.
It would be a good moment to also recall that Justice R. N. Agarwal and Justice U. R. Lalit were not confirmed as judges of the High Court (https://books.google.com/books? id=IM2wCwAAQBAJ&pg=PA284&lpg=PA284&dq=Justice+R.N.+Agarwal+of+the+Delhi+High+Court
+and+Justice+U.R.+Lalit+of+the+Bombay+High+Court,&source=bl&ots=1ihW8k_Uxr&sig=ACfU3U1r 2i4hEboZuw6BmiUi8oBIHaXgEQ&hl=en&sa=X&ved=2ahUKEwjUkLj9#v=onepage&q=Justice%20R. N.%20Agarwal%20of%20the%20Delhi%20High%20Court%20and%20Justice%20U.R.%20Lalit%20of
%20the%20Bombay%20High%20Court%2C&f=false) for their actions in blocking the State actions during the Emergency. Between the Emergency and today, we are still doing the same thing our judges – albeit for seemingly different reasons.
One may argue that non-confirmation of an additional judge of a High Court is not a ‘punishment’. It is much like an employee on probation who has not been confirmed – there is no vested right. To this, I have two preliminary replies: a judge’s position is different from an ordinary employee, and second, once the services of a probationer have been confirmed, an avenue of withdrawal of confirmation may not necessarily be available under the service rules. And, on facts, can one really say that the action of withdrawal of recommendation is not punitive?
In Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1, the Hon’ble Supreme Court has held that:
714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips [ Former President of the Supreme Court of the United Kingdom and Lord Chief Justice of England and
Wales] said: “In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State.”
718. The entire package of rights and protections ensures that a Judge remains independent and is free to take a decision in accordance with law unmindful of the consequences to his/her continuance as a Judge. This does not mean that a Judge may take whatever decision he/she desires to take. The parameters of decision-making and discretion are circumscribed by the Constitution, the statute and the Rule of Law. This is the essence of decisional independence, not that Judges can do as they please.
726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is “decisional independence”. It is also manifested in the ability of the institution to have
“functional independence”. A comprehensive and composite definition of “independence of the judiciary” is elusive but it is easy to perceive.
The judgment in Supreme Court Advocates-on-Record Assn (supra) makes it rather clear that any action that may be destructive of decisional independence would not pass the muster of th e basic structure test of independent judiciary. The precedent of withdrawing recommendation to make an additional judge permanent does not appear to be happy one. Admittedly, the case of Justice Pushpa
Ganediwala is a hard case. Since hard cases make bad law, I think the issue now, for the future, is not so much of the withdrawal, but of what factors that went in approving her appointment in the first place?Postscript: At some point, the Supreme Court must look at the working conditions of contractually appointed members of the Foreigners Tribunals of Assam and of the Foreigners Tribunals itself. I mentioned it in the beginning, not only for its shock value – but because it is a unique tribunal that is being systemically and systematically constrained to declare Indians as foreigners rendering them Stateless – and that is the real point of this article. The opinions produced by Foreigners Tribunals in Assam are as shocking as judgments of Justice Pushpa Ganediwala but in Assam the authors of such perverse judgements are rewarded by renewing their contractse?
