A truly independent judiciary cannot be subverted from within or outside

 Appealing to the court of public opinion is a dangerous precedent, not to be easily resorted to.

Written by Sanjay R Hegde | Updated: January 13, 2018 11:58 am
supreme court, sc judge conference, cji, dipak musra, sc judge reactions, subramanian swamy, prashant bhudhan, kts tulsi, indian express Justices Ranjan Gogoi, Jasti Chelameswar, Madan Lokur and Kurian Joseph address the press in New Delhi on Friday (Express Photo/Abhinav Saha)

When the Indian Constitution was being written, Constitutional adviser B N Rao met Justice Felix Frankfurter of the US Supreme Court. Justice Frankfurther advised that the Indian Supreme Court always sit ‘en banc’ (all together). He warned that if the Supreme Court sat in benches, there would be as many supreme courts as there were benches of the court.

That advice was not followed. There has been sharply divided use of the Supreme Court on various questions. Today’s press conference with four of the senior judges, including the putative Chief Justice of India Ranjan Gogoi, airing their grievances about the working of the court by Chief Justice Dipak Mishra is the starkest example of a divided Supreme Court.

What the judges have done by coming out is to destroy the cosy illusion that the judiciary is a collegial family of the holies where decisions are given entirely based on law. It is now apparent that personal predilections of judges also sometimes dictate the fate of cases and that men of law, both lawyers and judges, both know that to be true.

The judges have in their letter objected to the CJ using his powers as the Master of the Roster to assign sensitive matters to benches which could be reasonably expected to take a particular kind of view. Examples from the past come to mind. No tenant used to lose before Justice D A Desai. A husband in a divorce case could be expected to have a tough time before Justice Ahmadi. And it was well known that Justice M B Shah would not give death sentences.

So therefore the luck of the roster is clear in the success and dismissal of appeals. But when the Chief Justice of India as the Master of the Roster is accused in writing by four of his seniormost brethren, of using his powers to assign matters to particular benches, then it changes from the luck of the draw to a “fixed” match. The difference between random arbitrariness and deliberate tweaking of the result.

It is time to ensure that the institution is again put back on an even keel, to ensure that there are no outside forces which can dictate the course of events. It is all too easy to dismiss this as a clash of personalities. There are serious issues which have been highlighted by the four judges who have otherwise not been expected to go public.

Appealing to the court of public opinion is a dangerous precedent, not to be easily resorted to. The invitation to public opinion will intrude into judicial working and bring with it the attendant dangers of political polarization into judicial questions.

The issues flagged by the four judges should be resolved within the judicial family itself without resorting to any political or media platform whatsoever. Senior statesmen of the profession including people like Fali Nariman and Chief Justice MN Venkatachaliah must be resorted to for their wise counsel.

Over and above everything else there must be concentrated effort to assure the nation that a truly independent judiciary can exist which cannot be subverted from without or within.

Sanjay Hegde is a senior advocate in the Supreme Court and tweets @sanjayuvacha

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  1. O.p. Agarwal
    Jan 16, 2018 at 11:16 am
    Our feeling is that apart from some genuine concern and apprehension as well as a bit of psychological block that seem to have triggered the dissent, the revolt by the four learned very senior and wise judges was in a manner manipulated by very smart, strong and politically suave lobby of supreme court lawyers, political activists and some disillusioned legal luminaries, some of whom were present in the press conference itself. This episode has undoubtedly caused an irreparable damage to the image of the Supreme Court as well as the image of the four learned judges.
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    1. Rajiv Edavan
      Jan 14, 2018 at 5:49 am
      Very sensible observation and comment. If supreme court judges themselves cry foul and plead for justice in public, then what hope is left for public. They should be capable of resolving any differences among themselves rather than making it public. It is setting a very wrong precedence and not good for Indian judiciary.
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      1. gopal vaidya
        Jan 13, 2018 at 11:38 pm
        This article is a attempt to preserve the power of a closed and corrupt instetution. The instetution has failed to evolve open and transparent standards for appointments and discipline. Worse they have failed to produce legal excellence as witnessed by poor quailty of judgments where they frequently conflict with their own judgments. To ask senior advocates to mediate is to let the cat loose. The senior advocates are the beneficiaries of this corrupt system, because they have the power to get your case heard and to the "right" judge to hear it. This article is the worst advice for a broken system that cannot be fixed. Until the courts allow a place for the people of India to speak, it will not be fixed.
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        1. Seshubabu Kilambi
          Jan 13, 2018 at 9:50 pm
          Apointments and alotment of ases must be tansparnt. The SC should not be ifluenced by politicians
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          1. Ajay Gupta
            Jan 13, 2018 at 8:00 pm
            Every ins ution today is under challenge. We are going through one of the most difficult times in our history. Every civilisation goes through this. We also have to go through this phase, and with the passage of time perhaps something good will emerge.
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