When judges dissent

The ultimate guarantee of fairness as justice lie with the justices themselves

Written by UPENDRA BAXI | Updated: January 18, 2018 12:00:40 am
Supreme Court, Supreme Court Judges, Judicial Crisis, SC Judges, CJI, CJI Dipak Mishra, Justice Chelameswar, Kurian Joseph, Editorial News, Indian Express, Indian Express News The Supreme Court. (Express Photo by Tashi Tobgyal)

No matter how the matters are for the time being resolved (and swiftly on all indications), the present crisis in the Supreme Court involves mainly a contention on how judicial business should be conducted. The extraordinary movement of four justices in making public a letter addressed to the chief justice of India (CJI) in November 2017, and assorted observations at the press conference last week are very unusual judicial happenings. At that conference, Justice Chelameswar said that “less than desirable things have happened” and the protesting justices vainly “tried to collectively persuade” the CJI to take “remedial measures”. These happenings are now made even more unusual by Justice Ranjan Gogoi reportedly denying any “crisis” and Justice Kurian Joseph saying the matter is now settled leaving little scope for “outside intervention”.

However, the letter released at the press conference said otherwise; it spoke of the ways in which “the overall functioning of the justice delivery system”, the “independence of the high courts”, and the functioning of the office of the CJI have been “adversely affected”. A moving appeal to the Indian “Nation” was issued at the press conference and Justice Chelameswar justified speaking out, lest “wise people” say later that they were complicit.

A situation where four senior-most justices went public to express their discontent with the present CJI’s exercise of authority to constitute Benches raises grave constitutional questions. Although only an in-house rectification can save matters, it is an anti-democratic error of grave proportions to think that co-citizens should have no interest, stake, or say in the matter.

Undoubtedly, the chief justices, whether of the high courts or the SC, have the power to order the roster. The question is whether that power is coupled with a constitutional duty to follow certain conventions. Obviously, there are a few: Chief justices have a primary duty of accountability to the Brother Justices, the Bar, and a general obligation through the Bar to the litigating public and people at large. But when a letter by four senior justices has been ignored for about two months, is going public with a copy of that letter and holding even a press conference unjudicial? On this question opinions are varied. Some have lauded this step as heroic while others regard this as “sheer trade union tactics” and some even say the step was extremely unfortunate but now some institutional solidarity should pave the path ahead.

What are the other conventions? First, 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.

The second issue looming large is the finalisation of Memorandum of Procedure (MoP). In early July 2017 (in Justice Karnan’s case), at least two justices observed a need “to revisit the process of appointment of judges and establishment of a mechanism for corrective measures other than impeachment”. The letter also suggests that the issue of MoP “cannot linger on for indefinite period” and since the government has not responded to the MoP sent as far back as March 2017, the Court must now presume this long “silence” amounts to acceptance. Convening a full court and/or an agreement of the chief justices’ conference stand was suggested. The highest court in the land cannot endlessly wait for the government.

Endless discussion surrounds the suspicious death of Justice B.M. Loya hearing the case of “fake encounter killing” of Sohrabuddin Sheikh, although everyone involved agrees that a discussion of a specific pending case before the SC is highly inappropriate. The fact that a justice was appointed in the present regime cannot be any objection at all as all justices are elevated in some regime! If, however, there is compelling evidence that a justice is consistently partial, an impeachment proceeding is the only correct answer. Senior counsel has argued that the matter be heard in the Bombay High Court first where the petition was filed, and the Court should issue a reasoned opinion on this.

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. Since justice must appear to be done, it is also the convention that not all sensitive matters should be sent to the same Bench.

The remedies of impeachment and removal for judicial misconduct and review, and now curative jurisdiction, constitutionally exist. And further, the spectre of the call of conscience to go to the “Nation” will now haunt all chief justices. Informed criticism has some impact on judicial dispositions. But the ultimate guarantee of fairness as justice lie with the justices themselves. As Eugene Ehrlich, a founder of European sociology of law, said: “The best guarantee of justice lies in the personality of the judge.” Justices must be seen practising what they preach to the other holders of public power. It is only when they collectively fail to do so that a democracy is truly imperilled.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

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