Opinion India

Supreme Court – between a rock & a hard place

Chief Justice of India Dipak Misra and the four judges who went public  Justices N. Chelameswar; Ranjan Gogoi; Madan B. Lokur and Joseph Kurian.  Photo courtesy Freepressjournal.in 

………will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.

The Oath of Affirmation for Supreme Court Justices 

The Supreme Court is a solemn place, as if in mute recognition, of the enormous faith reposed by 1.3 billion Indians in it’s 25 Justices to safeguard democracy.

But last week it was thrown into a tizzy, as four senior-most Justices of the Court, adopted Gandhiji’s tactics of “direct action” and went straight to the people of India with their anguish. So deep was their despair that they bared their anguish in public at a press conference and released a letter they had addressed to the CJI, adding that they had tried to settle the matter internally, by talking to the CJI, who apparently gave them short shrift. The cause of their worry is that the Chief Justice was using his traditional discretion in allocating cases amongst judges, to direct “politically sensitive” cases to judges who could be expected to rule in favour of the government.

Prising open the clannish Supreme Court of India

Indian Supreme Court is notoriously clannish. A “collegium” of the CJI and four senior-most judges, recommend new judges for appointment to the higher judiciary. The process is opaque. The President of India -ergo the government of the day – must formally approve the appointment. This provides an opportunity to the Government to hold up an appointment. But it cannot appoint a judge by itself. This system dates back two decades when the Supreme Court ruled, in 1993, that the power of appointing a judge was inherent to its ability to safeguard the basic structure of the Constitution – its key mandate.

Failed attempts to democratise the appointments process

The earlier UPA government and subsequently the Modi government sought to substitute the “collegium” with a Judicial Appointments Commission comprising the CJI and two judges of the Supreme Court, the Law Minister of India and two eminent persons appointed by a committee consisting of the CJI, the Prime Minister and the Leader of the opposition in the Lok Sabha. The act was approved in both houses of the Parliament and by a majority of state legislatures, as is required for a constitutional amendment and notified as the National Judicial Commissions Act 2014.  However, a five-member bench of the Supreme court struck down this amendment to the constitution on October 16, 2015, thereby restoring the “collegial” appointments” system.

Justice J.S Kehar who led the bench striking down the Act went on the become the Chief Justice of India under the Modi government, as observers hailed the victory of the rule of law, constitutionality and the preservation of the fundamental principle of separation of powers in a democracy. The Modi government silently licked its wounds. But recompense was not long in coming.

The “collegium” system is not fail-safe

CJI Kehar retired on in September 2017 and the senior most Justice Dipak Misra was sworn in as the CJI on August 28, 2017 per precedent in the “collegium” system. On Friday last, the earlier supporters of the collegial system of judicial appointment were on their feet again, this time praising the four judges, who had saved democracy and lauded them for their courage and resoluteness in coming out in the open against the CJI chosen by the very same collegial system.

This just doesn’t square. So, lets assume, for arguments sake, that the CJI was sending “sensitive” cases to judges, whom he felt would decide them in a particular manner. What were the possible options available to the four judges?

Hierarchy and faux seniority rules the Supreme Court, rather than genuine collegiality

Clearly the first was to have a chat with the CJI and apprise him that they took a dim view of what he was doing. The judges say they did do that. But when nothing changed they decided to go public with the amorphous charges.

It is pertinent to ask, why they never sought to rally around them, their brother judges. There are 25 Judges in the Supreme Court. Why could they not convince the 18, or so, other “uncommitted” judges, that something needed to be done? Surely, if the four judges had managed to get an additional 10 judges around to their point of view and had they put up a common viewpoint to the CJI, the outcomes could have been different.

Why did only one, of the five Justices, who, are slated on seniority, to become CJIs till 2024, speak up?

One of the four judges, who went public, is Justice Ranjan Gogoi, who is set to take over as CJI, once the present CJI retires, in October 2018. Why did they not similarly try and get the four other Justices who can become the CJI all the way till 2024 converted to their cause? Sharad Arvind Bobde – due to become CJI in November 2019; N.V. Ramana – due in April 2021; Uday Umesh Lalit – due in August 2022 and D.Y. Chandrachud – due to become CJI in November 2022. Was it because these judges did not feel similarly oppressed? If this be the case, it significantly takes away from the bite of the allegations voiced by the four judges.

Justice Gogoi- a profile of passionate courage or a lightning rod of deep dissent?

Justice Ranjan Gogoi has certainly put his neck on the line by disrupting the placid exterior of the Supreme Court. He has also certainly riled the government. Readers may recollect that Justice Khehar, the previous CJI had also riled the government, by heading the five-judge Justice bench which totalled the NJAC Act. He became CJI nevertheless. The Judiciary and the Bar have aligned view-points which are penetrable only by insiders.

It is unlikely, that, Justice Gogoi would have gone public without consulting with and getting the support of his brother judges and the Bar. Even Supreme Court Justices are human and are allowed a touch of self-preservation. More important they are expected to be rational, sans emotion, with their heads ruling their hearts.

Does this imply that dissatisfaction, with the administration of the Supreme Court, runs deep within the brotherhood? Also does this not show that the judiciary needs to change with the times?

Good governance is about narrowing discretion, even in the Judiciary

Specifying the procedure for case allocation narrowly, rather than leaving it to the discretion of the CJI, would be a good start. Cases can be randomly allocated, using a specially designed algorithm, since all the Supreme Court judges have the same status and come to the court after years of experience. Most importantly, if the “collegial” system is not fool proof in selecting judges true to their salt, why not try the collaborative approach of the NJAC. After all, Justice N. Chelameswar, one of the four judges, wrote the dissenting judgement supporting the NJAC. No one arm of the State has a monopoly on virtue.

Also available at TOI blogs January 18, 2018 https://blogs.timesofindia.indiatimes.com/opinion-india/the-supreme-court-between-a-rock-and-a-hard-place/