“Be you ever so high, law is above you” – Thomas Fuller, 17th century English Churchman historian.
January 12, 2018 will go down in our history as Black Friday. Four senior-most judges bared the internal misgivings prevailing in the Supreme Court to the public domain, for the first time in judicial history.
The four judges had in a letter to the Chief Justice of India (CJI) have raised some insightful questions. They have demanded that all controversial issues, including politically-sensitive cases, be handled by Constitution benches of senior most judges, and assignment of all important cases in the order of seniority. The key issues also involved lack of a mechanism to deal with complaint against the CJI, and also the memorandum of procedure, which is yet to be finalised.
The judges said many things, and left many things unsaid. The recent upheaval manifests that all is not well in the apex court, thanks to its administrative lacunae. For the judges to revolt against the CJI speaks about the apathy that the judicial system is in.
While the common people find it tough to grasp the issues, practices and decorum relating to courts, the nation was appalled to see the senior judges addressing a press conference to alert the nation about the peril that Indian democracy is facing. They attacked the CJI’s arbitrary way of assigning important cases to their junior colleagues.
Is it wrong to meet media?
Have these judges done a disservice to the top court by speaking up in public? While they had the option of being silent, and even playing along, they displayed great moral courage to share their anguish in the open, all the more, when one of them is the next in line CJI.
Because they couldn’t sort out within the confines, nor seek the Executive’s attention, they were prompted to meet the press, unprecedented though. The BJP leader and Rajya Sabha MP Subramanyam Swamy said, “When such judges come out to do a press conference, it is necessary to take them serious, rather than finding fault.” When the judges are of high integrity, making a judgement call to go public should be lauded. Remember, these learned men know what judicial impropriety is. Not one, but four reckoned that it is right step, and they are also aware of the risk of going public.
The judges, instead of demitting in disgust, acted in good faith, in fact, renewed our faith in democracy. Their style may be debatable, not the substance. Effectively, the criticism that the senior judges should not have taken recourse to the media, does not deny the rot.
If you argue against the four judges, there are two possibilities. Either you are defensive because they are telling the truth. Or, because you believe that your opinion is more important than the collective wisdom of the four.
The letter also said, “We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent”. The allegations are of critical nature and warrant greater soul-searching. It is no more an internal matter of the judiciary, hence cannot be brushed aside.
Judiciary marginalised from within
Despite the empowerment, does the CJI enjoy absolute or arbitrary administrative powers in this regard? The CJI, the “master of the roaster”, enjoys the privilege to constitute Benches to hear cases, but the control must be exercised judiciously.
The position of the dissenting judges is that the CJI is only “First among equals — nothing more, nothing less,” implying that there is no place for Orwellian equality of “some are more equal.” When you are only the “first among equals”, and when four equals tell you something is wrong and if you deny it —then what they feared may be true.
Independence of the judiciary is the collective responsibility of the judges. The problem is who will judge the judges. As there is no place for favouritism or other extraneous considerations in courts, it is time the CJI steps in to remedy the situation; else, more judges will follow the four.
Like all other institutions, the judiciary too must maintain a certain degree of transparency and accountability to both the Constitution and the people of India. Judicial conduct needs to ensure judges do not embarrass their professional competencies. Not only must the Judge be impartial, he must be seen by all to be impartial.
The entire episode has thrown up a pertinent question. Why has the Judicial Standards and Accountability Bill, tabled in parliament in 2010, not been passed? The Bill proposed to lay down standards of conduct for judges.
Whatever be the actions and reactions to the issue, it is fervently hoped that people are not let down.
(The views expressed by the author in the article are his/her own.)