SC Must Stem Rot Before It Stinks

The Supreme Court of India is best with galore of controversies. At the beginning of this year, four of its senior most judges- Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph- held a Press Conference saying that ‘all is not well’ in the Supreme Court of India. This triggered the opposition parties to move for the impeachment of the Chief Justice of India Dipak Misra. However, the impeachment proceedings could not be carried forward because the entire last session of both houses was washed out due to the ruckus and pandemonium inside the house by one or the other opposition party. Thereafter two of its judges sent missives to the CJI requesting him to take immediate measures to set right the Court’s functioning.

Adding fuel to fire the former Law Minister and very senior advocate Shanti Bhushan and his son Prashant Bhushan, also a celebrated advocate, filed Public Interest Litigation in the Supreme Court for the constitution a five-judge bench to decide as to which case was to be heard by which bench. They further asked the Registrar General of the court not to list the matter before the Chief Justice of India. This part of their prayer virtually amounts to no confidence in the Chief Justice, which many consider being inappropriate. Prashant Bhushan mentioned this issue before Justice Chelameswar on 12th April 12, 2018, for early hearing but it was rejected by him with a sarcastic tinge that he would not like his order to be reversed by the larger bench in 24 hours.Assigning of the cases has been the main cause of contention. In their letter of 12th January 2018 to the Chief Justice, the four senior-most judges had said ‘there have been instances when cases having far-reaching consequences for the nation and the institution have been assigned by the CJI selectively to Benches of their preference without any rational basis for such assignment.’

In the meantime Justice Kurian also wrote a letter to the Chief Justice of India with copy to all other 22 judges of the Supreme Court saying that, ‘the very existence of the Supreme Court is under threat and history will not pardon us, if the court does not respond to the government’s unprecedented act of sitting on the collegium recommendation to elevate a judge and a senior advocate to the apex court’. He urged the Chief Justice to establish a bench of seven judges to suo motu take up the matter government sitting on the two names. If this demand is accepted, it would, effectively mean an open court hearing by the judges who could pass orders asking the government to decide on the pending recommendations of the Collegium. They could even direct the government to issue the warrants for appointments of judges within a stipulated time frame and failure to do so make the government liable for contempt of court. Justice Kurian even suggested that following the precedent in Justice Karnan’s case, the Supreme Court should take up the mater on the judicial side. Most remarkably, he added, that while Justice Karnan’s case was a threat to the ‘dignity of the court’, the present one is a threat to the ‘very life and existence’ of the institution.

What has, however, taken the cake is that a petition of a lawyer Ashok Pande, who is credited to have filed more than two hundred PILs on various issues,mostly in the Allahabad High Court. He filed his PIL within four days of the press conference of four senior-most judges of the Supreme Court. Shri Pande in his petition besides asking for transparency in the allocation of cases also suggested for a pattern to be adopted by the Supreme Court for constituting and assigning the cases to the benches. His all suggestions were disdainfully dismissed by the Bench of CJI Dipak Misra, AM Khanwilkar and DY Chandrachud. The author of the judgment Justice Chandrachud said, ‘the relief which the petitioner seeks is manifestly misconceived. For one thing, it is a well-settled principle that no mandamus can be issued to direct a body or authority which is vested with a rulemaking power to make rules in a particular manner. The Supreme Court has been authorized under Article 145 to frame rules of procedure. A mandamus of nature sought cannot be issued. Similarly, the petitioner is not entitled to seek a direction that Benches of this Court should be constituted in a particular manner or, as he seeks, that there should be separate divisions of this Court. The former lies exclusively in the domain of the prerogative powers of the Chief Justice’.

The Court further said that ‘apart from the fact that the relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach of the petitioner, which must be set at rest. The petitioner seeks the establishment of a binding precept under which a three-judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues. While the Constitution Bench should consist of five senior-most judges (or, as he suggests, three ‘senior-most’ and two ‘junior-most’ judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. This would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. The petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment. Every Judge appointed to this Court under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practice at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.’

Thus, now it has become abundantly clear that the CJI is the master of the roster. The Court elucidated that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that in absence of such a procedure the power will be exercised arbitrarily. In his capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. From an institutional perspective, the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of benches, the Chief Justice has an exclusive prerogative. As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme Court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence.’

In view of this imprimatur, the authority of Chief Justice of India as the Master of Roster is firmly established. But it appears that the imbroglio is not going to die down soon. Many eminent former judges have criticised the CJI for hearing the case which pertains to him and thus has violated the principle of natural justice nemo judex causa sua (nobody can be a judge in one’s own case).Such spats certainly erode the faith in the institution and therefore must be stemmed before it rots and stinks.