Are we missing the wood for the trees? Four senior-most puisne judges of the Supreme Court—Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph—addressed the nation through a press conference in New Delhi on January 12. Unprecedented certainly it was. The various comments in the media, including the supportive ones, appear to have missed at least partially the specific and central issue involved.
The best way of deciphering this extrajudicial script is to listen to their own words with their literal meanings. At the same time, we need to read their collective letter addressed to the Chief Justice of India (CJI), which, according to them, contained everything they wanted to say. From the above and from the surrounding facts in the public domain, it is clear that the main and perhaps the only problem raised is the purported engineering of the administration of the Supreme Court to obtain predetermined outcomes in sensitive cases where the executive had a huge stake. This is perceived to be endangering the independence of the judiciary and eventually democracy itself. Hence, the beneficiary of the manipulation is none other than the executive. This is further made evident with a specific reference to the October 27, 2017, order in R.P. Luthra vs Union of India . It directly involved the selection and appointment of the judges of the Supreme Court and High Courts. This orchestration highlights the attempt to neutralise the decision of a Constitution Bench on the subject, which was then publicly frowned upon by the executive.
Judicial engineering This judicial engineering at the instance and in the interest of the executive was alleged to be done in a two-pronged manner. On the one hand the benches were constituted extraordinarily in those sensitive cases in order to ensure the desired result. On the other hand, there was impermissible arrogation by some benches. There is the example of such an arrogation by a bench that passed the order in the Luthra case attempting to annihilate the deemed finality of the Memorandum of Procedures (MoP) in the appointment of the judges as bound by the Constitution Bench’s decision, although it was unpalatable to the executive. These bench manoeuvrings were as per the wishes of the executive if not at the behest of the agents of the executive and against the independence of the judiciary. The issue is not limited to the Supreme Court; it has adversely affected the independence of the High Courts too. The issue raised does not seem to be only or mainly against the present Chief Justice and his conduct as the master of the roster, although these do figure within the gamut of the problems. Of course the remedy cannot be effected without the active initiative or at least the cooperation of the CJI as the primus inter pares (the first among equals). The narration about the assignment by the Chief Justices to the benches “of their preference” also supports this.
The threat to judicial independence most commonly comes from the executive branch of the state. The executive and the legislature have manifold reasons to rein in the judiciary. The separation of powers has been invented and enforced in constitutional democracies like India to prevent tyranny by any branch of the state.
Of course, threats from within are also dangerous. Chief Justice Y.V. Chandrachud, on laying down office in 1985, made a poignant observation: “There is greater threat to the independence of the judiciary from within than without…. I expand on it as I see the danger.” However, these threats from within many a time are orchestrated at the instance of the executive. The executive readily uses the carrot-and-stick policy to extract preferred judicial outcomes. The perceived threat in the present case is evidently from the executive.
Committed judiciary and coloured judges The desire of the National Democratic Alliance (NDA) government to have “committed” judges is to be resisted. We have already witnessed the diabolical designs to have committed judges by different governments, especially by the Congress under Indira Gandhi.
Committed judiciary is totally different from coloured judges or judges with ideological leanings. The inarticulate major premise or the personal constitutional philosophy of the judges is a reality we cannot wish away. We cannot dream of a judicial blank mind. Benjamin Cardozo recognised the fallacy of the judicial blank mind in The Nature of the Judicial Process and asserted that there was in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. “Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the person, whether he be litigant or judge.”
In India, some judges and their benches used to be described by colour. Justice Kuldeep Singh’s bench was called a green bench because of its decisions on cases relating to the environment. Justices V.R. Krishna Iyer and P.B. Sawant were known as red judges because of their leftist background before joining the judiciary. The bench of Justices B. Sudershan Reddy and S.S. Nijjar got the epithet “red bench” for their judgment in the Salwa Judum case ( Nandini Sundar vs State of Chattisgarh (2011)7 SCC547) from rightists, including the present Union Finance Minister Arun Jaitley. Former Chief Justice Ranganath Misra was considered a “Congressi” in colour. Referring to the Hindutva and Ayodhya judgments, some people had attributed saffron colour to Justice J.S. Verma. Because of the unanimous seven-judge decision, which happened to be a shot-in-the-arm for the anti-cow slaughter lobby, some have attributed the saffron colour to Justice R.C. Lahoti. The benches presided by Justice K. Ramaswamy have been ingeniously accorded the “blue” colour in view of of his social justice verdicts in favour of the Scheduled Castes and Scheduled Tribes, some of which were subsequently overruled by other benches. So, it will not come as a surprise if the present Supreme Court benches are referred to as saffron benches.
There may be nothing wrong on the part of the Bharatiya Janata Party (BJP)-led executive to have a desire and fulfil it to have judges subscribing to their constitutionally maintainable ideology through permissible means and without endangering the independence and impartiality of the judiciary. Every government is likely to attempt it. And it may be democratically permissible. Saffron ideology and methodology attributable to the Rashtriya Swayamsewak Sangh (RSS) and the Hindu Mahasabha appear to be on the ascendance through the BJP and NDA. Despite having been banned twice as illegal, it has occupied some space on the democratic pedestal under the pseudo plea of development, albeit wearing the masks of constitution-compliance. They are yet to be tested on the touchstone of constitutionalism, especially composite constitutionalism.
It is one thing to have coloured benches and an altogether different thing to use judicial engineering and scuttle the judicial process to reach the ideologically desired outcomes pleasing to the party, the government and its chief patrons. This is what happened when Indira Gandhi attempted to promote the committed judiciary. What the four judges have flagged is undoubtedly stealthier and more erosive of the constitutionalism and democracy, not to speak of the independence and impartiality of the judiciary.
Public faith eroded? The four judges’ disclosure and its content were frowned upon as they were likely to erode the faith of the public in the judiciary, especially that of the apex court. Of course, any dent in the exalted and haloed image of the Supreme Court may appear to be capable of reducing the credibility of the institution. But the fact may be otherwise on close scrutiny. People go to the court not because the persons manning or “womaning” (rarely) the court are divine or even saintly. Nobody except the naive would believe that judges are of a different mettle than the ones who adorn the executive or the legislature. Then what makes people place their trust in the courts and on judges? Studies around the world have shown that it is the assurance of the procedure to be followed that elicits trust and faith in the judiciary. This was the reason for Parliament to amend in 2006 the Contempt of Courts Act, making truth as a defence in a contempt case. A Constitution bench in 2014 took note of this in its verdict in the defamation case against Arun Shourie.
The sin of speaking through the media The criticism of violation of judicial ethics against the four judges for speaking to the media does not appear to be well founded. The Code of Judicial Ethics known as the restatement of Values of Judicial Life, adopted as a resolution by the Supreme Court in 1999 and subsequently by High Courts to serve as a guide to be observed by judges, include guidelines Nos. 8 and 9. But the judges did not enter into a public debate. They came before the public, and according to them, before the whole nation. They made a disclosure, which they considered to be of supreme importance and urgency. They stated that they were not entering into any debate. As an answer to plausible queries, they released a letter to the public. The press conference was not on any political matters, but it related to the perceived threat to judicial independence and impartiality. They spoke on the administrative function of the court in the allocation of the case and the rules and conventions of the Constitution and membership of the benches. They cannot be alleged to have not allowed their judgments to speak for themselves instead of giving interviews to the media to explain or defend those judgments.
But was it not in effect a coming into the open through the media and making certain disclosures relating to the administrative and judicial functioning of the Supreme Court and High Courts? Although such a thing is not forbidden, many consider it as an unprecedented step and an undesirable one to be a precedent. Is such a desire for secretive sheltering not a hangover from the undemocratic, feudalistic and aristocratic colonial past? Can the sunshine of the public view be an anathema for a judiciary in a constitutional democracy or a desirable and necessary preventive injection and an antiseptic? The principle of open justice, in its various manifestations, is the basic mechanism of ensuring judicial accountability.
Was there any other alternative? Silence could have been an alternative, which would have been less risky for themselves but murderous for the institution and may be for the health of the democracy. Breaking the silence had the risk of being suicidal for their fame and prospects. Given their experience and calibre, it is difficult to assume that the four judges were oblivious of the personal risks involved and the likely backlashes. They had to choose between a murderous silence and a suicidal disclosure.
Dialogue they did attempt. The very letter is conspicuous of the attempt at interactions. Roping in other judges outside the collegium would have been an attempt at unionisation and selling their ideas. It would have been an imposition of burdens on those who naturally do not lie or pass the buck.
A reference to the President could not have been considered especially since it was evident that the danger was from the executive. The President acts only with the aid and advice of the executive. If the four had approached the President it would have been considered as a surrender before the executive, destroying the independence of the judiciary.
What next?
What the nation can try to impress upon the members of the judiciary is to ask them to adopt Sage Sukra’s prescription to preserve the independence and impartiality of the judges. Sukra Neeti (IV-5-14-15) requires the judges to guard themselves against the five vices: (i) raga (leaning in favour of a party), (ii) lobha (greed), (iii) bhaya (fear), (iv) dvesha (ill-will against anyone) and (v) vadinoscha rahashruthi (the judge meeting and hearing a party to a case secretly, that is, in the absence of the other party). The threatened attempt to impeach either the Chief Justice of India or the four judges by political groupings can only do irreparable harm to the independence of the judiciary. The one who must be put in the dock is the executive and its agents, wherever they are operating from, be it the executive, the legislature or even the judiciary. The judges should disclose to the nation all details, including the names of all the persons. They should evolve fair and transparent procedures even for the administration of the Supreme Court and High Courts, including guidelines for the exercise of discretion wherever applicable. The judges of the purported select benches should withdraw on their own from all such cases, especially those involving the executive and the legislature. Above all, the executive, instead of its hypocritical hands-off gestures should stop meddling with the judiciary directly and indirectly. The executive must declare its intention of not interfering with the judiciary and follow it up with actions, especially with regard to the Memorandum of Procedures and the process of selecting and appointing judges to the Supreme Court and High Courts.
Dr M.P.Raju is an advocate practising mainly in the Supreme Court of India. His recent book is India’s Constitution: Roots, Values and Wrongs.
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