Vol. XLII No. 03 January 21, 2018

Rumblings in Supreme Court

THE press conference by four senior judges of the Supreme Court on January 12 was truly unprecedented in the judicial history of India. Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, the four senior most judges after the chief justice and who constitute the five-member collegium took this extraordinary step to complain about the way in which the chief justice was dealing with the administrative matters relating to the allocation of cases and the constitution of the benches.

The four justices also circulated a letter that they had addressed to the chief justice two months earlier in which they had expressed their grievances and cited an instance where a judgement was given about the memorandum of procedure which had already been decided by the collegium. The letter also significantly talks about the constitution of “benches of their preference” without clearly specifying who they are.

The senior judges have raised issues of vital importance which have a bearing on the integrity and independence of the judiciary. The empirical evidence confirms their cause for concern. For instance, in many of the major cases before the court such as the Ayodhya case and the Aadhar case, none of the four found any place in the bench let alone heading it. In the Aadhar case, it was a bench headed by Justice Chelameswar which had recommended that it be referred to a constitution bench. Yet when the five-member constitution bench was constituted none of the original members of the bench including Chelameswar found a place.

The posting of the Justice Loya case to the tenth bench headed by Justice Arun Misra seems to have only confirmed the fears of the senior judges that there is a deliberate pattern in the way the roster of cases and composition of the benches are being decided.

The attitude to the four senior most judges became evident once again when, three days after the press conference, on January 15, the constitution bench to hear seven cases including the decriminalisation of homosexuality (Section 377) and entry of women to the Sabarimala temple was announced. None of the four senior judges are included in the five member bench to be headed by the CJI.

There is no doubt that this is the most serious crisis faced by the highest court of the land. It comes at a time when the entire judicial system is facing various strains and pressures. A major threat is the way the executive is seeking to interfere in the higher judiciary. For the past one and half years, the Modi government has been trying to acquire powers to vet and veto appointments to the Supreme Court by demanding inclusion of certain clauses in the memorandum of procedure. One of them is the vetting for national security after the collegium sends the name of those to be appointed as judges. There is every danger of the independence of the judiciary being compromised by the pressure tactics adopted by the executive.

Given the serious issues involved, it will not be proper to brush them under the carpet and declare peace and normalcy has been restored in the Supreme Court. It is to be hoped that the collegium as a whole and the full court of judges can discuss and resolve the outstanding issues on the basis of the principle of democratic functioning and transparency.

Ultimately, there is need for basic reforms in the judicial system, one of which is on the question of appointments and supervision of the higher judiciary. The National Judicial Appointments Commission (NJAC) adopted by parliament was struck down by the Supreme Court as unconstitutional. The collegium system for appointment of judges is unsatisfactory and needs to be changed. The NJAC was defective in that there was scope for greater say of the executive. The CPI(M) has been advocating along with democratic lawyers’ organisations that a more broad based National Judicial Commission be constituted which will deal not only with appointments but also complaints about conduct of judges.

(January 17, 2018)