Sometimes blessings come in disguise. The sanguine hope is that the volcano that has erupted in the Supreme Court of India on 12th of January in an unprecedented press conference of four seniormost puisne judges will bring good results for the catharsis of the judiciary. It was like a tremor in the Indian judicial history when four judges-Jasti Chelameswar, Ranjan Gogoi, Madan Bhimarao Lokur and Kurian Joseph took the unimaginable recourse of addressing the media to tell the nation that everything was not hunky dory in the Supreme Court of India. Hectic efforts are going on to paper over this crisis of monumental proportions, but it has already become a historic watershed in the higher judiciary.
The press conference has brought forth the rot that has been simmering the judiciary but never discussed openly. There has been a general opinion across the country that subordinate judges and its paraphernalia has been in the neck-deep corruption. Even a common man will tell that a Peshkar in the courts openly takes bribes for providing the simple information of the dates to the litigants. Nevertheless, the judges of the High Courts and the Supreme Court have been enjoying the tremendous trust of the people of the country.
The press conference has thrown an opportunity for the self- introspection. Till now the people and the media have been hauling over the coals about the conducts of the Legislature and the Executive but the Judiciary has largely been left untouched. The judicial functioning has not been subjected to public scrutiny as other two organs of the State. Many times, allegations of forum shopping and bench hunting are leveled but they have been mostly in a veiled manner.
During the press conference, the judges also circulated a seven-page letter in which they have raised mainly two points. First is about the Memorandum of Procedure (MoP) for the appointment of the judges in the High Courts and in the Supreme Court, which still remains undecided and the second is the assignment of cases by the Chief Justice of India to other judges and their benches. Both of them lack transparency. The Chief Justice of India, it is accepted by all, is the master of the roster, but he cannot use it arbitrarily for assigning the cases to the benches, which are pliable and favorable to him. The Chief Justice of India is ‘first among equals’ in the administrative side but in the judicial side, all judges are equal.
Supreme Court Judges are considered to be the wise persons by their learning, experience, and constant training. Barring a few, most of them have been the Chief Justices of one or many High Courts of the country before being elevated to the Supreme Court. The four judges who are being termed as the ‘rebel judges’ have also been the Chief Justices of different High Courts. Therefore, they are well aware of the duties, obligations, rights, and responsibilities of the Chief Justice of India.
What has, however, happened on 12th January has stunned the nation. There is one incident which has some similarity with this one and that was on 1973 when Mrs. Indira Gandhi had superseded three judges –H.R. Khanna, JM Shelat, and KS Hegde to appoint Justice A.N. Ray, a committed judge, as the Chief Justice of India. All three superseded judges had then resigned from their posts to express protest and resentment but this time there is not even a whisper of resignation from any judge. Instead, they openly expressed their consternation against the Chief Justice of India and sought the help of the country so that the posterity after 20 years may not accuse them of selling their souls. This was an oblique call for the impeachment of the Chief Justice. When Justice A.N. Ray was made the Chief Justice ignoring the seniority of others, it was solely in the hands of the Executive. However, after 1993, the Executive has practically no role in the appointments, transfers/promotions of the judges. All the present judges of the Supreme Court owe their appointments in the High Courts and their elevation in the Supreme Court to the Collegium System.
There has been a huge hue and cry against the Collegium System, which empowers a group of five judges to appoint other judges. This system does not find any mention in the Constitution of India but has been introduced through a judgment of the Supreme Court. By this system, the Supreme Court has taken over all the powers to itself by rendering the Executive ineffective. Just to clip the wings of the Collegium System, the government, with the support of all political parties, enacted the ‘National Judicial Appointments Commission’ (NJAC) for the appointment of the judges, which was challenged in the Supreme Court but then again, the Supreme Court struck down the NJAC Act and restored the Collegium System. Justice J. Chelameswar was the loner, which handed down the NJAC judgment. He said that the Collegium System is erroneous, opaque and therefore must be done away with. Incidentally, it is he who has led the rebellion this time.
Obviously, these four senior-most judges must have had their overwhelming reason(s) to defy the ingrained protocol of silence and anonymity. Their grievance, first made privately to the Chief Justice, had remained unaddressed. The letter they have made public draws a portrait of a wayward Chief Justice, unbothered and unwilling to give the four-senior brother judges the time of day. The only feasible conclusion is that there is an internal collapse of the highest judicial forum. Any person who gets elevated as Chief Justice of India is called upon to show wise leadership if the institution over which he presides has to retain its vitality and robustness. There is a very little place for- to recall what Sardar Patel had to tell Harilal Kania three days before he became the first Chief Justice of India -“petty-mindedness” in how a “Chief” deals with his brother judges. It is incumbent upon a Chief Justice of India- indeed for anyone who presides over an institution – to corral fellow-judges into the joys and pleasures of judicial brotherhood and its internal code of mutual respect and consideration.
The possible solution to the crisis can be that a part-heard matter may not be divested from the co-justices who are seized with it. Second, the CJI may not deny a request for recusal on grounds of conflict of interest. Third, the chief justice may not ignore the requests by co-justices to form a larger Bench. Fourth, a chief justice may not selectively assign sensitive or important cases to the same judges. However, fifth, it is doubtful whether there is, or ought to be, a convention requiring such matters to be heard only by the senior-most justices. No, because the decision to elevate a citizen to judgeship must involve all relevant considerations; once elevated, a justice is co-equal to all other brethren. Sixth, it is true that co-equality occurs within a hierarchy: Not every justice becomes a chief justice, and the SC collegium must comprise the five senior-most justices. Outside this framework, the question about the rank-ordering may not arise; all justices speak for the constitutional court. Any discussion about benches headed by “junior” justices is therefore injudicious. Competitive party politics cannot but take sides in this debate, but justices must act on evidence and arguments before them. Political actors work with an interest in specific outcomes, but a judicial judgment must be devoid of any personal stake in the outcome.
Therefore, it would be in the fitness of the time and the occasion that the Supreme Court Act must be framed for the restructuring of the Supreme Court itself. It is vital that a court of 31 judges if it is to function as an apex court, must develop some degree of institutional coherence. Such coherence is impossible when the court sits on benches of two judges each. And secondly, the existing structure allows the CJI to become the master of the roster, vested with the absolute discretion of allocating judges to particular cases, leading to crises like the present one. An antidote to both the aforementioned problems is a restructuring of the Supreme Court into three divisions: Admission, Appellate, and Constitutional. All Special Leave Petitions under Article 136 ought to be first considered by the Admission division. The division should comprise five randomly selected judges who for one quarter every year should deal only with admission cases.
Such restructuring will have three advantages. First, it will yield more coherent jurisprudence, particularly in constitutional matters, taking us closer to certainty and the rule of law. Second, it will allow for more careful contemplation of which matters actually deserve admission to India’s apex court. Third, it will reduce the discretion available to the CJI to select benches, since this will be limited to the appellate division alone.