IS it a mere coincidence that on one and the same day, Thursday, April 12, 2018, one of the mostly highly respected judges of the Supreme Court and one of the acknowledged leaders of the Bar spoke in anguish and alarm about the state of the Supreme Court of India in terms that should alert the nation? Justice Kurian Joseph said that the “very life and existence of the institution is under threat”. Kapil Sibal said that the “judiciary has reached its nadir today” ( The Hindu , April 13).
The language could not have been stronger. Both men are known to measure their words. If the judiciary is in such deep crisis as to warrant the language that they used, it is due almost entirely to the obdurate stand of one man, the Chief Justice of India, Justice Dipak Misra. His claim to be “master of the roster” is unfounded. The word “master” does not belong to a judge. The existence of the power to select colleagues on the bench over which he presides or allocate cases to his colleagues is not in question. It is the manner of the exercise of the power that has led to the immediate crisis.
On January 13, four of the most senior judges publicly protested against the exercise, obviously after months of a patient wait for its reform. Three more months have rolled by, but there is no sign of reform. Justice Kurian and Kapil Sibal have spoken not a day too soon. One wishes each, the judge and the counsel, had more from his respective fraternity to speak up in his support.
Any claim to unfettered power is alarming. It belongs to none in a democracy governed by the rule of law. Edmund Burke gave it a deserved burial in his speech on the impeachment of Britain’s first Governor-General in India, Warner Hastings, on February 15-19, 1788. He said: “You have heard his lecture upon arbitrary power, which he states to be the constitution of Asia. You hear the application that he makes of it; and you hear the practices which he employs to justify it.
“He, to have arbitrary power! My lords, the East India Company have not arbitrary power to give him; the King has no arbitrary power to give him; your lordships have not; nor the Commons; nor the whole legislature. We have no arbitrary power to give, because arbitrary power is the thing which neither any man can hold nor any man can give away.
“Those who give and those who receive arbitrary power are alike criminal, and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world. Nothing but absolute impotence can justify men in not resisting it to the best of their power.
“Law and arbitrary power are at eternal enmity. Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. Judges are guided and governed by the eternal laws of justice, to which we are all subject. We may bite our chins if we will, but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God.”
This was said 230 years ago apropos an officer of the executive. It is shocking to hear claims to absolute, unaccountable power in an officer of the judiciary, especially the presiding judge of the apex court.
We have not reached the nadir all of a sudden. The decline was long in process. We need now urgently to resolve the immediate crisis, which includes Prime Minister Narendra Modi and Law Minister Ravi Shankar Prasad’s refusal to appoint as judges of the Supreme Court, judges of High Court duly recommended by the collegium. We need, next, to ponder over the origins of the decline, the course it took and the finale it threatens to reach unless it is arrested now.
In Britain there was an uproar in the House of Lords led by the Lord Chief Justice, Lord Hewart, over the government’s Bill to create a new office of Vice President of the Court of Appeal. It was suspected to be a move to deprive Lord Justice Slessor of the right to preside over the court. Imagine the uproar if Chief Justice Misra’s claim were made by the Lord Chancellor, the Lord Chief Justice or the Master of Rolls as a “master of the roster” who can continuously, systematically exclude particular judges from Benches hearing cases of importance.
We have nothing remotely comparable to The Law Quarterly Review or Solicitors Journal whose censures judges dread. The less said about the publicity-seeking academics in law the better. But, regardless of the fate of the present agitation, some members of the Bar can form a committee to ascertain and analyse the practice followed by the Chief Justice of the Supreme Court in the U.K., Canada, Australia and South Africa and publish the results of their research for public edification.
Law Commission report The expression “frowning judges and fawning counsel” was used 55 years ago by one of the leaders of the Bar and one of the drafters of our Constitution, K.M. Munshi. He loved the Bar. His contemporary at the Bombay Bar, M.C. Setalvad, India’s first Attorney General, criticised in the President’s Page of the Journal of the Bar Association of India some lapses in judicial behaviour.
The 14th Law Commission, over which he presided, had the most distinguished composition. Its report is even more relevant today.
It said: “Undue interruption is not unusual, particularly in case of Advocate Judges in the Supreme Court and the High Courts.” As a great Lord Chancellor remarked: “A judge should first be a gentleman. If he knows the law as well, so much the better.” No less disturbing are the trends in judicial conduct outside court.
The Law Commission observed: “Far from avoiding the precincts of Government House, judges have come to treat invitations from Government House as ‘commands’. Newspapers tell us of Chief Justices and judges being ‘granted’ interviews by Ministers. Though a few judges still maintain the old isolation, a large majority sees nothing incorrect in freely mixing with the Executive.
“The attitude of judges in regard to contacts with the public seems also to have completely altered. It has become frequent for judges, newly appointed to the bench, to accept invitations to entertainment not only from representative associations but from individual members of the Bar and even from private citizens.”
It prompted this writer to write an article on “Disturbing Trends in the Judiciary” which was published on September 22, 1963, in The Sunday Standard , the Sunday edition of Indian Express . The Chief Justice of the Bombay High Court, Justice H.K. Chainani, was livid and complained to my senior, Justice K.T. Desai, a lawyer’s lawyer. Around a score of colleagues at the Bar wrote to the Standard in support on October 14, 1963; two of them became judges of the High Court.
The 14th Law Commission characterised a certain type of judge as “Advocate Judge” and noted “Undue interruption is not unusual particularly in case of Advocate Judges in the Supreme Court and in the High Courts”. This was written in 1958.
The 60 years since have seen no improvement, but rather a steep decline. The Commission referred to the government’s behaviour towards the judges which led to “demoralisation and a loss of self-respect in the judiciary itself which has led to a decline in the efficiency of their work”.
Loss of self-respect It is this loss of self-respect which explains why four of the five judges, the most senior of the Supreme Court—Chief Justice of India A.N. Ray, Justices M.H. Beg, K.K. Mathew and Y.V. Chandrachud—hearing Indira Gandhi’s appeal against the Allahabad High Court’s judgment by the brave Justice Jagmohan Lal Sinha holding her election to the Lok Sabha to be void, allowed her Principal Secretary and adviser P.N. Haksar to meet them in order to persuade them to decide in her favour. Justice H.R. Khanna was omitted. ( Indira Gandhi vs Raj Narain  Supp. SCC1.) Since Haksar revealed this in a private conversation when I was his guest, I decided not to publicise it at least for the time being. Fortunately, B.N. Tandon, Indian Administrative Service, a Joint Secretary and a member of Indira Gandhi’s staff, spilled the beans in his memoir PMO Diary-II: The Emergency .
“Sarin (a senior civil servant) stated, ‘You must be knowing that judges have been approached and there is a constant contact with some of them’. This today is the state of affairs of the nation. Why have not the judges who have been approached by the government served the notice of contempt of court.
“On 9 December 1989, after a long time I went to meet Haksar Saheb in his house. He was sitting alone in a room. His eyesight is very poor now. When he heard a sound and asked who it is, I told him my name, upon which he became emotional and standing up, embraced me. When we were talking Siddharth Shankar Ray’s wife Maya Ray arrived. ... Haksar was in a mood to talk. ... Then the talk came around to Indira Gandhi and Rajiv. Haksar began to criticise them very unhappily. One sentence of his would make his viewpoint very clear. He said, ‘Maya, I have seen the mother and the son hitting their own wickets’. But I am mentioning this meeting in the Diary for a totally different reason. There is an indication in various places in the Diary that the judges of the Supreme Court had been approached by Indira Gandhi’s side in her case. The general belief is that either Haksar or Gokhale (the Law Minister) did it. Today, Haksar himself confirmed it to Maya Ray. He told her, ‘Maya, this was not really necessary. Indira Gandhi had herself disposed of the case against her through amendments to the Constitution, etc. But I was forced to go to every judge’” (page 63). This book, published by Konark, deserves to be read widely today.
Habeas corpus case This was in 1975. The next year came the infamous judgment in the habeas corpus case in which Justice H.R. Khanna was the solitary dissenter. Chief Justice A.N. Ray and Justices M.H. Beg, P.N. Bhagwati and Y.V. Chandrachud duly provided support to the State’s cause. ( ADM Jabalpur vs Shivakant Shukla  2 SCC 521.)
Once the Emergency was over the Supreme Court became hyperactive. As Lord Bingham remarked, “the courts tend to be most assertive, active and creative when political organs of the state are least effective” ( The Daily Telegraph , April 17, 2001).
The Janata Party government, a house divided, was weak. Indira Gandhi returned to power in 1980 and resumed her old ways. So did the Supreme Court. Punch-drunk with power, she let loose the Army on her own people, the Sikhs, and that too in the most sacred monument of their faith and identity, the Golden Temple at Amritsar. Operation Blue Star proved disastrous. Moderate leaders like Sardar Harcharan Singh Longowal were arrested. There was none to provide leadership and succour to a wronged people. Ram Jethmalani filed a habeas corpus petition before the vacation judge in the Supreme Court. It was dismissed on June 19, 1984, summarily by Justice E.S. Venkatramiah [ Ram Jethmalani vs Union of India (1984) 3 SCC 696]. Jethmalani’s noble effort proved of no avail.
So scandalous is Justice Venkatramiah’s order that it deserves to be quoted in extenso . It is bereft of any pretence to a judicial pronouncement—even the names of the detainee and the facts are not mentioned, nor the law, however briefly. What the judge did, significantly, was to deliver a speech on patriotism from the high seat of justice where he neglected consciously to discharge his elementary duty. The speech deserves to be quoted in extenso from the very first para to the last (pages 696-698).
“These are extraordinary cases involving serious questions of great public importance touching the security of the nation as well as personal liberty of a sizeable section of the community, many of whom may have been made to believe by a dominant section of society, may be wrongly, that what they were doing was right and for that reason may not have been free agents. Hence these cases have to be dealt with differently from the usual cases which come up before this Court. ... Every word uttered on either side of the Bar should be weighed before it is used.
“I, however, feel that the questions involved are too large and complex for the shoulders of a single judge to bear. It is my humble view that these and other cases of like nature should be heard by at least seven learned judges of this court whose unquestioned judicial authority, erudition and acumen would be of great assistance in the restoration of peace in one of our great States known for the valour, the devotion, the spirit of sacrifice and the sense of duty towards the country of the people residing in it.
“May I say that there can be no compromise on the following matters, namely, unity and integrity of India, the secular and democratic form of the Indian government and the supremacy of the Indian Constitution? They must be upheld in any event.... It is good to remember here what Abraham Lincoln said, though in another context, in 1858, ‘A house divided against itself cannot stand’. The issue now before the court involves more than the future of India. Again to quote Lincoln from what he said in the American context: ‘It presents to the whole family of man, the question whether a constitutional republic or a democracy—a government of the people, by the same people—can or cannot maintain its territorial integrity, against its own domestic foes. The above words appear to be relevant in the present Indian context too.”
“I, therefore, refer these cases to a larger bench with the fond hope that our country would have no occasion in the future to face a similar situation. These papers may be placed before the Hon’ble the Chief Justice of India for appropriate directions.” He was Justice Y.V. Chandrachud.
The issue before the single judge was simple. Was the state justified in detaining a citizen? He ought to have issued a rule, asked for an early return on affidavit and production of the detainee before him. A seven-member bench was not necessary. Vacation judges are nominated precisely to deal with matters of emergency, none more urgent than a habeas corpus petition. Justice Venkatramiah brazenly abdicated this elementary duty under a smokescreen of a patriotic oration.
He did worse than refuse relief to the detainees. He stigmatised them as secessionists and traitors and did so without hearing them in their defence. “The unity and integrity of India” was not in issue one bit. Even if the Akalis were secessionists, which they were not, as citizens they had a right to writ. The references to the American Civil War, and to “domestic foes”, betrayed the judge’s outlook and desires (“relevant in the present Indian context”). This judgment of 1984 is as much a blot on the Supreme Court’s record as the one in 1976 in the habeas corpus case. Justice Venkatramiah was made Chief Justice of India.
If this be the court’s approach in a matter like this, small wonder that Kashmiris receive scant sympathy. In the State of Jammu and Kashmir, the writ of habeas corpus has become in a good many cases a writ of habeas carcass.
The writ of habeas corpus came to India at the very outset of British rule. It was first issued in 1775 by the legendary Sir Elijah Impey, Chief Justice of the Supreme Court at Calcutta, against the first Governor-General and a friend, Warren Hastings (1775 Morton’s Reports 206; Rex vs Warren Hastings). But the writ acquired fame and force in the famous case of Ameer Khan in that court ( Re: Ameer Khan  6 Bengal Law Reports 392).
Usurpation of power by judges Usurpation of power by judges of our Supreme Court has proceeded apace with judicial abdication in the face of grave wrongs by the state to the citizen. K. Veeraswami vs Union of India (1991) Supreme Court Cases 656 concerned Justice Veeraswamy of the Madras High Court who was alleged to have Rs.6,50,000 of assets disproportionate to known sources of his income. (A quarter of a century earlier this was a lot.) Three of the five judges of the Supreme Court imposed by pure ipse dixit a self-serving condition to probes against judges at the very outset, which has played havoc with such probes. It places judges above the law and is unknown anywhere else in the world.
Sanction is required by law for prosecution by one authorised to remove the public servant. Justice B.C. Ray said: “In order to adequately protect a judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India, who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India . If the Chief Justice is of opinion that it is not a fit case for grant of sanction for prosecution of the judge concerned the President shall not accord sanction to prosecute the judge. This will save the judge concerned from unnecessary harassment as well as from frivolous prosecution against him a suggested by my learned brother Shetty, J., in his judgment.”
Justice Jagannath Shetty boldly revealed the outlook of the judges of the day. “This court being the ultimate guardian of rights of people and independence of the judiciary will not deny itself the opportunity to lay down such guidelines. We must never forget that this court is not a court of limited jurisdiction of only dispute settling. Almost from the beginning, this court has been a law maker, albeit, in Holmes’s expression , ‘interstitial’ law maker. Indeed, the court’s role today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas . In this case, we consider it no mere opportunity: it is a duty. ...
“We, therefore, direct that no criminal case shall be registered under Section 154, Cr.P.C. against a judge of the High Court, Chief Justice of the High Court or judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered . If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. Accordingly, the directions shall go to the government.”
Justices L.M. Sharma and J.S. Verma held that this view usurped the legislative’s power. A quarter century later this 3-2 ruling based on pure ipse dixit is still followed. This is unique to India, and its Chief Justices have not lived up to the trust so confidently placed on the office.
Two years later came a similar case of usurpation of power by the judiciary with consequences even more baleful. The Supreme Court created by a mere judicial fiat a collegium of its judges to recommend to the government persons for appointment to the Supreme Court and the High Court. This was on October 6, 1993, by a 7-2 majority in Supreme Court Advocate on Record vs Union of India (1993) 4 SCC 441. In 1998, the President sought the court’s advisory opinion on the issues that had arisen. (Special Reference No. 1 of 1998;  7 SCC 739). Be it remembered that the case had been referred to a nine-member bench in 1991 by a bench of three judges in Subhas Chandra’s case on two questions only—primacy of the Chief Justice of India’s opinion and justifiability of fixation of judge’s strength in courts. The bench of nine formulated four questions notwithstanding that the pleadings and the arguments were limited to two questions. Both the relevant constitutional provisions and the debates in the Constituent Assembly were ignored.
India’s foremost and most erudite constitutional lawyer H.M. Seervai gave the judges who gave the majority ruling in 1993 their just deserts in his work Constitutional Law of India , Fourth Edition (pages 2926-2943).
He wrote: “I have submitted in the Preface to the second volume of this edition that with rare exceptions, the standard of Sup. Ct. Decisions had continued to fall steeply in matters involving questions of constitutional law. In Part IV of the Post Script to the Addenda to Volume II of this edition. I wrote: ‘I have submitted in the Preface that with rare exceptions the standard of Supreme Court decisions has continued to fall steeply in matters involving questions of Constitutional Law. For reasons fully set out in Parts II and III of this Addenda it is submitted that the judgment of six majority Judges on Art. 164 have reached the rock bottom’. For reasons which will fully appear in my discussion of the Second Judges’ Case, in the majority ‘judgment’ of Verma J., and in the ‘concurring’ judgments of Pandian J. and Kuldip Singh J. in that case, the ‘bottom’ has fallen out and never has a majority judgment of the Sup. Ct. reached a lower level of judicial incompetence. Judicial incompetence takes the form of ignorance of the legislative history; ignorance of the provisions of our Constitution; ignorance or disregard of well-settled principles of interpretation; ignorance of the meaning of ordinary English words; inability to draw correct conclusions from passages cited; and begging the question to be proved.”
The judgments in the 1993 case, he pointed out in detail, “bristle with always every fault which can be committed in a judgment” (page 2964). He held also that the majority judgment of five judges—in which two others concurred—“became null and void for not following the mandatory provisions of Article 145 (4) and (5)” of the Constitution. The products of this quaint, illegitimate institution, a creation of judicial hubris, the collegium, have not been too inspiring.
Statesmanship demands an accord among the bench, the Bar and the Union on a National Judicial Commission which can command public confidence. In England, the Lord Chief Justice and the Secretary of State arrived at a Concordat on Constitutional reforms on 26 January 2004. As Robert Stevens remarked in his book The English Judges : “Judges choosing judges is the antithesis of democracy.” He recalled that “history is littered, with examples of judicial hubris ending in judicial tears”.