The judiciary is as much an institution of the public as is the legislature or the executive. A strong nation is one that embraces questions on the judiciary and does not shy away from them
For most of us, the judiciary represents hope. It’s the institution the nation has looked to in our darkest and most trying times. The courts are expected to be the voice of reason and restraint. The judiciary reinforces checks and balances that are in place and aims to ensure that no matter the pace of change and constant evolution that India is going through, its constitutional values and the core practices of an efficient democracy are adhered to, while examining important questions of gender, religion, education, freedom of Press etc. In order to adhere to these demands, the courts have been granted wide freedom and authority. However, by virtue of exercising such great power and being the subject of such faith, it is expected to act with honesty, transparency and accountability and just as importantly be viewed as acting with honesty, transparency and accountability.
On January 12, 2018, in an unprecedented move, four of the five senior most judges of the Supreme Court held a Press conference, which forced the entire nation to listen and examine this crucial interplay between the power that has been conferred on the courts in our Constitution and the moral demands that must be kept in mind while fulfilling this role. The four judges, namely Justices J Chelameswar, Ranjan Gogoi, Madan B lokur and Kurian Joseph, at the Press conference shared a letter which has now been widely circulated and read, wherein the senior judges highlighted certain practices and instances which they were displeased with and have raised certain questions on the manner in which the Chief Justice of India has exercised his powers. Since the contents of the letter are well known, I will examine why the current standoff needs our serious attention and how India has the opportunity to emerge stronger from what has been a unique episode in the annals of the judiciary.
It is established that the Chief Justice of the Supreme Court is the master of the roster. This means that, amongst other things, the Chief Justice exercises the administrative duty of allocating matters to particular benches. This exercise of power is not guided by any written procedure and is not explicit. There are, however, norms and conventions which are typically followed by the Chief Justice while exercising his powers as master of the roster. Recently, there have been murmurs and allegations of this power being exercised without reliance on these norms and conventions. It is dissatisfaction over such conduct by the Chief Justice that allegedly prompted the four senior judges of the Supreme Court to talk to the Press and highlight their grievances to the nation. Justice Chelameswar at this Press conference summarised the importance of examining these grievances when he said, “We all believe that the Supreme Court must maintain its equanimity. Democracy will not survive without a free judiciary.” The reason why this discussion is important is not because there are questions of bias which have been raised, but because the Chief Justice though the master of the roster, is the first among equals and given the significant matters that the Supreme Court opines on, these issues and concerns warrant examination.
Currently, the top court has 26 judges and due to a variety of factors but primarily due to the huge backlog of cases, a bench of two judges typically is allotted a number of these matters. Additionally, due to popularity of public interest litigations, which are filed before the Supreme Court, these judges opine on matters that have huge influence on our life. It should be noted that in the United States, the highest court of the land has all the judges of the court opining on matters that come before it. In the UK’s Supreme Court, the 12 judges sit in panels of five (or more). Suddenly, then the power of the Chief Justice of the Supreme Court of India, to allot such matters to various benches at his discretion, seems no longer as purely an administrative one but one that in reality could possibly lead to a situation where extremely sensitive issues are being decided by a smaller bench of not the most experienced judges. While I am in no position to argue whether the allocation of judges is fair or questionable, there is no denying that the issue is a matter of concern for the entire country.
Misguided reactions: When news of the standoff finally broke, it prompted serious debate and provoked discussions from academics, policy experts as well as political parties. Those who have encouraged debate and raised pertinent questions have been accused by the Bharatiya Janata Party (BJP) to be “politicising” the issue. It is rich coming from the BJP, who in Maharashtra had to apologise for explicitly alleging bias against a senior judge of the Bombay High Court to preach about politicising judicial issues. However, this selective amnesia is nothing new for the BJP. There is a saying that when all you have is a hammer, everything looks like a nail and this seems to be the case with the BJP who can no longer distinguish between issues of national concern and “politicising” of issues. I would urge my friends on the other side to put down the hammer and instead join the discussion, which can help resolve the current standoff.
The other reactions, which I have seen, have been disappointing as well. The Attorney General came out and downplayed the entire episode, saying that the unprecedented standoff, that has grasped the attention of the entire nation, is a “storm in a tea cup”. It is obvious then that the BJP and the Government have either not grasped the seriousness of the matter at hand or are choosing to ignore it. Whichever way you slice it, it reflects poorly on the BJP and the Government.
People have also argued that these questions should not be raised before the Press or made part of the public discourse, as it is an ‘internal matter’ of the Supreme Court. This categorisation seems to suggest that only people, who are a part of an institution, should have the right to comment on its working. It completely ignores the fact that this ‘institution’ is deciding important questions that will have a seismic impact on how India’s future looks. Therefore, these are matters that are not exclusive to the institution and alien to the rest of us. Each of these issues will have a bearing on how we as citizens can go about our daily lives. The judiciary, therefore, is as much an institution of the public as the legislature or the executive. All three pillars of the state serve the republic and are, thus, accountable to the republic. Therefore, by regularly categorising any questions raised against the Supreme Court as being a matter of internal discussion, we are being unfair on the institution as well as the public.
Conclusion: In order to ensure the survival of our democracy, it is important to adopt a standard of transparency that the court demands from others who hold power. At this crucial juncture for our democracy, there has been criticism from some quarters that the Press conference was an improper forum for the senior judges to voice their displeasure and discontent. The argument is that these issues are better dealt with without the focus of the entire country on it. In all fairness, such a move took immense courage, which would also go some way in explaining why it was unprecedented.
What must be remembered is that the country needs a strong Supreme Court. In my humble opinion, a strong Supreme Court and, therefore, a strong nation is one that embraces such questions and does not shy away from it. Whatever one thinks of the mode adopted by the judges, the questions raised should not be shied away from.
(The writer, Jharkhand PCC president, is a former MP and IPS officer. Views expressed are personal)