Fear Should Not Overwhelm the Freedom to Speak Out: Justice Shah
Justice AP Shah spoke candidly and sharply on the opacity in the judiciary of India and the reforms needed ahead.
advertisement
Former chief justice of the Delhi High Court Justice Ajit Prakash Shah gave a sharp and thought-provoking speech titled ‘Chief Justice – First Among Equals’ at the BG Verghese Memorial Lecture, The Media Foundation, on Friday, 9 March. The speech was in context of the press conference held on 12 January by four of the five senior-most judges of the Supreme Court, who “decided to go public with their concerns about the working of the institution they were a part of.”
While the complete text can be read below, we’ve picked out a few strong excerpts for you.
- I believe that these four judges felt so troubled by the goings on in the judiciary and the Supreme Court in particular over the past few months that they felt driven to go public, for otherwise, they would be in transgression of their constitutional duties.
- Especially in circumstances that are considered damaging to the administration of justice, the silence of judges cannot possibly be justifiable.
- I would like to stress that I am not - in any way - suggesting that seniority should have been the criteria for allocation of cases, but the fact that all four of the top five judges of the Supreme Court, other than the Chief Justice, have been curiously kept out of all constitutional matters, is surely strange and something to be questioned.
- Today, we have a situation which was foreseen many decades ago, by Chief Justice Y.V. Chandrachud, when in 1985 he observed, “There is greater threat to the independence of the judiciary from within than without...” Mind well, these threats many a times are orchestrated at the behest of the executive.
- And surely, the time has come to do away with the collegium system, and relook at the opaque system that the judges have constructed for themselves.
1. Good evening to all of you today. Thank you very much Ms Sevanti Ninan and the Media Foundation for inviting me to be the speaker at this year’s BG Verghese memorial lecture. Greetings also to Mr Stephen Butler, Mr Chaitanya Kalbag, and other distinguished members of the audience. I knew of BG Verghese from the days when he was the Chairperson of the Commonwealth Human Rights Initiative. I was on the executive committee of CHRI, and he was a wonderful person to work with.
2. BG Verghese was a pillar of strength, in more ways than one for journalists, human rights activists and civil society in general. He stood by and fought for democratic principles throughout, alongside other stalwarts like Jayaprakash Narayan, and VM Tarkunde. Most notably, I remember that, during emergency, his criticism of government policy led him to be removed from his role as editor of the Hindustan Times.
3. Verghese stood for a great many things, which showed through all his actions and work - whether it was working for civil liberties and democratic rights, through his association with organisations like CHRI, PUCL and the like, or the idea of a free press, through symbolising what was meant by ideal journalism. Indeed, journalism was practically his mission. It goes without saying that he is greatly missed today, especially in this age when large sections of media have become propaganda machines, more than anything else.
4. When I was asked to speak at this memorial lecture, I thought it would be most appropriate, and relevant, to speak of the proceedings that have lately besieged the institution I have been most closely associated with, the judiciary.
First Among Equals
1. I want to start with a small anecdote. In the late 19th century, the third Chief Justice of Victoria in Australia was one George Higinbotham, whose reputation as someone who was extremely thrifty, and who derided wealth was only too well known. His fees when practising as a lawyer were notoriously low, and he routinely distributed his earnings to the needy. One story of his when he was judge particularly stands out. As Chief Justice, he was entitled to a stipend of 3500 Pounds, which was 500 pounds more than his fellow judges. He was so uncomfortable at the prospect of being paid that extra amount, that he would spend the additional 500 pounds on lavish entertainments, which were completely useless to him. His view was that as Chief Justice, he was merely primus inter pares, or first among equals. In his official capacity, he was the chairperson and official representative of the bench, but in all respects, he regarded his powers to be identical to those of his fellow judges.
2. Indeed, this is true of anywhere in the world, that is, a Chief Justice is merely first among equals. Even in High Courts in India, which I am familiar with, even though a Chief Justice has certain official roles, such as showing some intellectual leadership, presiding over administrative meetings, and allocating work, and recommending names of judges for elevation, along with the collegium of judges, at no point in time is the Chief Justice considered or made to believe that they may be superior to other judges in the court.
3. Another Australian judge, Sir Owen Dixon, captured this idea beautifully, in his speech on being sworn into the office of Chief Justice:
“The court is a co-operative institution; the position of the man who presides differs very little from that of any other judge. Perhaps he receives a little more attention from the Bar than he deserves because he announces the conclusions of the court first, but all my judicial experience tells me that a man's influence on the court does not depend on where he sits.”
The Context
1. There is no need for me to be cryptic about why I choose to speak on this subject. All of you are well aware of what it is that I am referring to. But it is worth recapturing just briefly, if only to re-emphasise the importance and gravity of the incident, which I worry that perhaps we have not fully grasped.
2. A little less than 2 months ago, on January 12, 2018, tremors shook the ground beneath the Indian judicial system, “in an extraordinary event in the history of any nation”, as the protagonists themselves described it, when four of the five senior-most judges of the Supreme Court decided to go public with their concerns about the working of the institution they were a part of. Never before in the history of independent India, and certainly not in the history of the highest court of the land, had judges addressed the media through a press conference. The four judges - Justices Jasti Chelameshwar, Ranjan Gogoi, Madan Lokur and Kurian Joseph -- without mincing words, said that unless the judiciary as an institution is preserved, “democracy will not survive” in this country.
3. Their concerns spanned a range of issues, but most importantly, included the administration of the Supreme Court, which, they said, is not in order, and I quote, “many things which are less than desirable have happened in the last few months”. They also expressed pointed displeasure at the Chief Justice of India’s actions over the past few months, stating that “We met the CJI with a specific request which unfortunately couldn't convince him that we were right therefore, we were left with no choice except to communicate it to the nation that please take care of the institution.” and that “We tried collectively to persuade the Chief Justice of India that certain things are not right and remedial measures need to be taken, but unfortunately we failed”, which is why they decided to approach the press and make their concerns public.
4. The crux of their allegation was that court conventions of bench-strength and bench-composition, in the allocation of cases, were not being followed. They specifically alleged that, “there have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches ‘of their preferences’ without any rational basis for such assignment.”
5. The judiciary in India is unarguably an institution that enjoys the trust of the people. It is perhaps one of the most powerful institutions in the country, and is highly regarded for having upheld constitutional principles time and again over the past decades.
6. This press conference and the allegations made by the judges brought to light many issues which have been simmering for several months, and which strike at the foundations of the institution. Today, I want to talk about these issues, the implications it has on the future of the judiciary, and the kinds of questions we need to be asking to ensure that our democratic system remains in good health.
Why Did the Judges Protest?
1. When the four judges held this press conference, some commentators speculated that this amounted to gross impropriety on their part, and their actions smacked of judicial misconduct. While they have not attempted to defend their actions thereafter, it seems unlikely that they would not have assessed the implications of these events. Indeed, their actions actually suggest the contrary, that rather than being in breach of their code of conduct, they were perhaps displaying allegiance to the oath of office they took upon entering office.
2. I believe that these four judges felt so troubled by the goings on in the judiciary and the Supreme Court in particular over the past few months that they felt driven to go public, for otherwise, they would be in transgression of their constitutional duties. In my mind there was no doubt as to the intentions behind the press conference. All four of the judges involved risked something or the other in being a part of this public conference. Justice Gogoi, for example, has placed on the line his chances of succeeding Justice Dipak Misra as the Chief Justice of India (CJI), for, as per, convention, the incoming CJI is appointed on the recommendation of the outgoing CJI. In equal measure, the other three, although they will retire well before the current CJI does, have risked criticism from their peers, and perhaps also getting isolated from the bar and bench after they retire.
When Can Judges Speak?
1. When the press conference took place, the question that probably crossed most people’s minds was whether the judges were right - in the first place - to speak publicly at all.
2. This reminds me of an incident that took place when I was a judge in the Bombay High Court. Around then, some serious allegations had been made against the then Chief Justice in Bombay High Court. In this case, the senior judges took the lead against the Chief Justice. They spoke to the Bar privately, and they also involved some junior judges, and took them into their confidence. Eventually, the Chief Justice was made to resign by the Supreme Court. If the senior judges had not been received in this manner, or if the resignation had not taken place, I have often wondered what might have happened. The senior judges might well have gone to the press, had they been sufficiently disenchanted with the way things were. There are situations and situations that lead individuals to take action.
3. In this regard, Justice MC Chagla, who, in my opinion, was one of India’s finest Judges, had some apposite remarks to make in his autobiography. In the case of Justice MC Chagla, in contrast to the story I just told you, however the pressure came from the government. The then Chief Minister of Bombay, Morarji Desai, had expressed disapproval at certain speeches Justice Chagla had made criticising government and policy. Justice Chagla, while agreeing with the Chief Minister Desai, that a judge should not take part in politics or discuss political issues, said that this rule was subject to two exceptions: the first was the right to criticise the government on its education policy, which he was personally interested in, but the second was the more important one, relating to laws which concerned the administration of justice. Justice Chagla said that “if the government passed any law or pursued any policy which … undermined the prestige of the judiciary or weakened the administration of justice,” he would “speak, and speak out loudly”.
4. While this is clearly not a situation like Justice Chagla found himself in, the issue raised by the four judges concerns the question of administration of justice, and to that extent, I think many of us would agree that it behoves a member of the judiciary to “speak out loudly”.
5. In his book unambiguously titled Judges, the English baronet and barrister, David Pannick, captures this appropriately in his critical analysis of the Kilmuir Rules, set out in 1955 in the UK which prohibit judges from participation on radio and television. Fortunately, this rule is no longer the norm in the UK. But it came about when the BBC asked Lord Chancellor Kilmuir to grant permission to certain judges to participate in a series of radio lectures about great judges of the past. In response, Kilmuir said that “the importance of keeping the judiciary in this country insulated from the controversies of the day” was of primary concern. Kilmuir added that it was inappropriate for judges to be associated with “anything which could be fairly interpreted as entertainment”, including talks, and that, as a general rule, it was “undesirable” for judges to appear on radio or television.
6. Pannick correctly argues that this ban had no justification, especially in the case of an independent judiciary. He says,
“Judicial independence is compromised not by public explanation of the judge’s views but by attempts to restrain him and threats to dismiss him if he does not conform to conventions which have no legal force and are contrary to the public interest. A judge should be fully entitled to speak out on matters of public concern so long as he does not give people cause for suspecting bias or partiality in the cases to be heard in his court and so long as he refrains from comment on matters of political controversy.”
7. Especially in circumstances that are considered damaging to the administration of justice, the silence of judges cannot possibly be justifiable. Pannick adds that, “Judges should not be treated like children in Victorian times, required to remain silent unless spoken to. They are entitled, indeed, they have a public duty, to speak out of matters concerning the administration of justice.”
8. Closer to home, Justice MC Chagla, too, was only too aware of the consequences of silence. In his autobiography, he wrote “There is always a tendency on the part of any Government to centralise power, to encroach more and more on the authority of collateral organs of the constitution, and to throw out tentacles which would embrace as many independent institutions as possible.”
9. “It is an unfortunate fact”, he added, “that all governments, regardless of their complexion, resent criticism, opposition and dissent to a greater or lesser degree.” Arguably, this fear persists even today, but such fear should not overwhelm the freedom to speak out.
Speaking Through the Media
1. Several judges and lawyers expressed the view that these four should not have gone public, but should have attempted to resolve the matter internally. As one English Chief Justice, Lord Widgery, said that”the best judge [is] the man who [is] least known to the readers of the Daily Mail”, and who advised that “judges should not court publicity and certainly should not do their work in such a way as to to ‘catch the eye of the newsman’”.
2. Some observers said that these four judges violated judicial ethics in going to the public in this fashion. On May 7, 1997, the Supreme Court of India in its Full Court adopted a Charter called the “Restatement of Values of Judicial Life” to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice. According to guideline number 8, “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” Guideline number 9 says that “A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.”
3. But in the present context, neither of these guidelines - 8 or 9 - can be held up against the actions of the four judges. Did they enter into public debate? On the contrary, they made only a public disclosure. They did not express views on political matters, or on matters pending for judicial determination. Instead, they made a public statement on what they felt was the state of the institution they were a part of, about judicial independence and impartiality, about administrative functioning, case allocation, and judicial convention.
4. One worthy judge-commentator also said that there must be contempt action against these four judges. Suggestions such as this merely perpetuate the cultural norms of secrecy and non-transparency that have led the judiciary to where it is today - as an opaque institution that can neither be questioned from within or outside. This institutional construct is a legacy of our colonial past, and no longer holds valid in the context of modern notions of governance, administration, transparency and accountability.
5. Several sections of the media have reported that many principles and conventions regarding allocation of cases were disregarded. Some reports suggest that cases that were only part-heard by one bench were abruptly shifted to another bench.
6. In the circumstances, what were the alternatives for the four judges They already spoke to the Chief Justice directly, but to no avail. The letter detailing their concerns which they disclosed after the press conference, had been sent to the Chief Justice, in November 2017, a few months before they called this conference. Clearly, these issues were brewing for a long time. They could have gone to the other judges within the Court, but surely, it would have created a greater rift. They could have, as a last resort, gone to the President of India, but I am relieved that they did not, for at any and all costs, the independence of the institution must always be maintained, and the executive and legislature should be kept out of judicial affairs.
The Immediate Trigger
1. Although they did not say it in so many words, it was clear that the immediate trigger for the press conference was a meeting held with the Chief Justice earlier that day, regarding the allocation of one particular case - involving a deceased judge of a special CBI court, Judge BH Loya - to a particular bench.
2. Judge Loya was presiding over the Sohrabuddin Sheikh case, and died of a heart attack in December 2014 in Nagpur. While the Sheikh case is a complex and convoluted matter in itself, Judge Loya’s death and the case filed thereafter is backed by its own set of conspiracy theorists. Was there an attempt to pressurise the judge in making a decision in the Sheikh case? Was he offered bribes? Was it the court’s duty to inquire into his death? And so on. Many unanswered questions exist, and while it is a digression likely to be of much interest, I need to return to focus on the issue I began with, that is, the immediate trigger for the press conference.
3. According to the four judges, they were concerned about the bench to which this case was allocated to, which was contrary to roster and convention.
4. After the press conference, the Chief Justice made public the roster for the Supreme Court. On the face of it, it is a step towards transparency. But on closer observation, a few concerns emerge. For example, he has kept all the PILs to himself, except social justice. As a result, all PILs, the appeals/SLPs against orders passed by High Courts in PILs will also go to the CJI, or the CJI will allot it to a bench of his choice. That is the essence of the roster which has been declared. More importantly, all accountability matters have all been kept with the CJI.
5. In the present scenario, in the roster made public, we see that all four judges who made this public declaration are kept out of all important matters, be it the Ayodhya case, the Aadhaar matter, or the land acquisition row. While it is true that seniority is not the sole criterion, but seniority does matter.
From my experience, for example, whenever a new judge comes in the court, they remain quiet, at least for a while. Even when sitting in hearing, they mostly tend to agree with the senior judge who is with them on the bench. The expectation of both the senior and the junior judge is that the senior judge at least would have been there for a few years, and would have some experience. The junior judge would bring a complementary perspective of new views. The implicit understanding is that experience matters. This is how you get plurality of views in decision making.
Best Practices From Around the World
1. Throughout the world, judiciaries in other countries have evolved principles of neutral case assignment, and fairness, transparency and accountability in judicial procedure to strengthen their judicial institutions. India can only learn from these things.
2. What is neutral case assignment, you may ask? As Professor Petra Butler describes it,it is a system designed to prevent the risk of judicial panels being packed, or to prevent the risk associated with the perception that panel packing may have occurred or may take place in the future. It involves making decisions for assignment based on principles of neutrality, impartiality, transparency and collegiality or consultation. Why is neutral case assignment important? She gives four reasons, which are useful to replicate - first, courts are protected from intervention in the quest for justice. Second, it bolsters public confidence in the impartiality and independence of the judiciary. Third, it assures litigants of equality and fairness, in that everyone has the same chance of getting a judge favourable or unfavourable to their cause. And fourth, it ensures that basic rights and freedoms are not compromised.
3. Of these, the importance of establishing and retaining public confidence is often misunderstood or miscalculated. In the 2002 US case of Grutter v. Bollinger, one issue was whether the panel the judges were sitting on had been packed. The dissenting judge made the acute observation that “unless we expose to public view our failures to follow the court’s established procedures, our claim to legitimacy is illegitimate”. It would be heartening to see our judiciary pay equal importance to these questions.
4. In the United Kingdom, the practice of case assignment has developed through custom and convention, with a very strong emphasis on a “culture of trust”. This culture of trust is so strong within the judiciary, that the values of impartiality and internal judicial independence appear to have been internalised. The process of allocation of cases has some structure, but also allows for discretion. The Registrar assigns cases to panels on a random basis. But the ultimate authority lies with the President and Deputy President of the court. These two, however, do not act as if they have unlimited discretion, and they use a consultative, flexible and open approach to case allocation - the operative word here, in my opinion, being consultative. As a result, it has become a matter of convention that other judges in the court are consulted and provide feedback on the constitution of panels.
5. This is further accentuated by the conventions evolved around bias, and perceptions of bias. The general principle is that wherever a fair minded and impartial observer would consider there to be a real possibility of bias, the judge concerned must recuse, as concluded in Porter v. Magill. Further, if there is a real ground for doubt in any case, that doubt should be resolved in favour of recusal.
6. This notion of convention dictating judicial practice in matters of assignment is followed in other commonwealth countries as well, such as Australia and Canada but with stricter norms governing convention.
7. For example, in the High Court of Australia, the Chief Justice “proposes” a roster for each sitting. The power of assignment exercised by the Chief Justice is not determinative in any way, but merely recommendatory. It also relies on convention, and like the UK principle, a judge is disqualified if a reasonable person may suspect that the judge might be unable to bring a completely impartial mind to bear on the subject of the litigation.
8. In the United States Courts of Appeal, case assignments are random, and are separated from panel selection, to maintain integrity in the process. The US Supreme Court itself sits en banc and is not, therefore, a suitable comparator, here.
9. An alternative to convention dictating norms of case assignment is to have clearly defined rules, as is the case in Europe. The European Court of Human Rights, for example, has its Rules of the Court that set out how cases are to be allocated. Seniority and rotation or drawing of lots is the usual process. This process recognises that seniority bestows certain rights. At the same time, the rules offer a neutral filter, because they create clear and accountable methods that spread the workload and minimise arbitrariness. The ECHR’s Grand Chamber, for example, as per the relevant rule 24(1), will comprise the President, the Vice Presidents, Section Presidents, and eleven other judges and substitute judges chosen by drawing lots.
10. The European Court of Justice also has elaborate rules, in similar fashion. Benches follow the principle of seniority, with the President, Vice President and Chamber President automatically included, and other members chosen either according to simple seniority, or the principle of “seniority alternating in reverse order” (in other words, the first on the list is the senior most, the second on the list is the junior most, and so on).
11. It is clear that clear rules and convention are followed everywhere in administrative matters involving the court. These are scrupulously observed in order to preserve the integrity of the judiciary as an independent and fair institution. An environment of trust envelops the entire process.
12. In contrast, having, or claiming to have, unbridled power as master of the roster can be a dangerous thing. Take for example, a report prepared by a delegation of the International Bar Association, on judicial independence in Russia. The delegation noted that, “there does not seem to be any system for ensuring that cases are allocated according to objective criteria” in that country. Further, the delegation said that there was anecdotal evidence to suggest that particular cases were allocated by the Chief Justice to judges more likely to deliver “desired” verdicts, or that cases were transferred in the middle of proceedings because the judge concerned refused to be influenced.
Best Practices From Around the World
1. Throughout the world, judiciaries in other countries have evolved principles of neutral case assignment, and fairness, transparency and accountability in judicial procedure to strengthen their judicial institutions. India can only learn from these things.
2. What is neutral case assignment, you may ask? As Professor Petra Butler describes it it is a system designed to prevent the risk of judicial panels being packed, or to prevent the risk associated with the perception that panel packing may have occurred or may take place in the future. It involves making decisions for assignment based on principles of neutrality, impartiality, transparency and collegiality or consultation. Why is neutral case assignment important? She gives four reasons, which are useful to replicate - first, courts are protected from intervention in the quest for justice. Second, it bolsters public confidence in the impartiality and independence of the judiciary. Third, it assures litigants of equality and fairness, in that everyone has the same chance of getting a judge favourable or unfavourable to their cause. And fourth, it ensures that basic rights and freedoms are not compromised.
3. Of these, the importance of establishing and retaining public confidence is often misunderstood or miscalculated. In the 2002 US case of Grutter v. Bollinger, one issue was whether the panel the judges were sitting on had been packed. The dissenting judge made the acute observation that “unless we expose to public view our failures to follow the court’s established procedures, our claim to legitimacy is illegitimate”. It would be heartening to see our judiciary pay equal importance to these questions.
4. In the United Kingdom, the practice of case assignment has developed through custom and convention, with a very strong emphasis on a “culture of trust”. This culture of trust is so strong within the judiciary, that the values of impartiality and internal judicial independence appear to have been internalised. The process of allocation of cases has some structure, but also allows for discretion. The Registrar assigns cases to panels on a random basis. But the ultimate authority lies with the President and Deputy President of the court. These two, however, do not act as if they have unlimited discretion, and they use a consultative, flexible and open approach to case allocation - the operative word here, in my opinion, being consultative. As a result, it has become a matter of convention that other judges in the court are consulted and provide feedback on the constitution of panels.
5. This is further accentuated by the conventions evolved around bias, and perceptions of bias. The general principle is that wherever a fair minded and impartial observer would consider there to be a real possibility of bias, the judge concerned must recuse, as concluded in Porter v. Magill. Further, if there is a real ground for doubt in any case, that doubt should be resolved in favour of recusal.
6. This notion of convention dictating judicial practice in matters of assignment is followed in other commonwealth countries as well, such as Australia and Canada but with stricter norms governing convention.
7. For example, in the High Court of Australia, the Chief Justice “proposes” a roster for each sitting. The power of assignment exercised by the Chief Justice is not determinative in any way, but merely recommendatory. It also relies on convention, and like the UK principle, a judge is disqualified if a reasonable person may suspect that the judge might be unable to bring a completely impartial mind to bear on the subject of the litigation.
8. In the United States Courts of Appeal, case assignments are random, and are separated from panel selection, to maintain integrity in the process. The US Supreme Court itself sits en banc and is not, therefore, a suitable comparator, here.
9. An alternative to convention dictating norms of case assignment is to have clearly defined rules, as is the case in Europe. The European Court of Human Rights, for example, has its Rules of the Court that set out how cases are to be allocated. Seniority and rotation or drawing of lots is the usual process. This process recognises that seniority bestows certain rights. At the same time, the rules offer a neutral filter, because they create clear and accountable methods that spread the workload and minimise arbitrariness. The ECHR’s Grand Chamber, for example, as per the relevant rule 24(1), will comprise the President, the Vice Presidents, Section Presidents, and eleven other judges and substitute judges chosen by drawing lots.
10. The European Court of Justice also has elaborate rules, in similar fashion. Benches follow the principle of seniority, with the President, Vice President and Chamber President automatically included, and other members chosen either according to simple seniority, or the principle of “seniority alternating in reverse order” (in other words, the first on the list is the senior most, the second on the list is the junior most, and so on).
11. It is clear that clear rules and convention are followed everywhere in administrative matters involving the court. These are scrupulously observed in order to preserve the integrity of the judiciary as an independent and fair institution. An environment of trust envelops the entire process.
12. In contrast, having, or claiming to have, unbridled power as master of the roster can be a dangerous thing. Take for example, a report prepared by a delegation of the International Bar Association, on judicial independence in Russia. The delegation noted that, “there does not seem to be any system for ensuring that cases are allocated according to objective criteria” in that country. Further, the delegation said that there was anecdotal evidence to suggest that particular cases were allocated by the Chief Justice to judges more likely to deliver “desired” verdicts, or that cases were transferred in the middle of proceedings because the judge concerned refused to be influenced.
Master of the Roster
1. The question that arises in the present context is whether this power of being “master of the roster” is unfettered and can be exercised without due attention being paid to convention or transparency and fairness.
2. I would like to stress that I am not - in any way - suggesting that seniority should have been the criteria for allocation of cases, but the fact that all four of the top five judges of the Supreme Court, other than the Chief Justice, have been curiously kept out of all constitutional matters, is surely strange and something to be questioned.
3. Surely it is the duty of every Chief Justice to aspire to protect fundamental features of the judiciary. There are robust practices that are followed in many High Courts in India itself, which can be used as examples. For example, Chief Justices of High Courts normally decide benches in advance, taking into conscious consideration relevant factors such as the ability of the judges and their previous experience in handling certain kinds of subject matters. Division Benches are always headed by senior judges, and it will never happen that a senior judge is sitting in a roster of lower importance, while a junior judge heads a Division Bench. The objective of the Chief Justice, in managing the roster, is to strike a balance between disposal of cases, and maintaining the integrity and independence of the institution and the quality of justice that is meted out.
4. What is to happen when a Chief Justice does not adhere to these principles? Does being “master of the roster” mean that such a person remains unaccountable and cannot be questioned?
5. The present Chief Justice’s actions may have been exercised in individual capacity, but are indicative of a deeper malaise affecting the Indian judiciary. Any educated observer will have noticed that the Supreme Court has, to use Shekhar Gupta’s phrase, “ring-fenced, if not quarantined itself”.. This opacity has not developed by circumstance, but is a pro-active construct of the judiciary itself, reaching its apogee, perhaps, in denying the application of the Right to Information Act to itself. For many decades, the judiciary has hidden behind a mask of constitutionalism, defending its silence as an intrinsic feature of the its institutional integrity and role as a constitutional authority. But such a display of silence and integrity comes up short when it is at the cost of the rule of law, and principles of transparency and accountability.
6. There is little that outsiders can do to persuade this arm of State to open up. Ultimately, the desire to be transparent and follow principles of rule of law and natural justice must emerge from within the institution itself. That is what has happened with this press conference.
7. The most immediate - and most appropriately positioned - constituency to question the judiciary’s behaviour over the past few decades is the Bar. The leaders of the Bar ought take more proactive steps towards pushing for reforms in the judiciary, especially in introducing transparency, in asking the judiciary to open up about allocation of work. They can play a much greater role than they have played to date.
Way Towards Reform
1. I believe the Indian judiciary has much to learn from many places - from other courts of the world, or even from within the Indian judicial system itself. Whether it is developing a strong culture of trust and consultation like the English, or building a clear, transparent, seniority- and rules-based system of allocation like the Europeans, or avoiding the ad hoc-ism of Russia, we have a lot to learn and adopt and evolve for ourselves.
2. Similarly, we need to introspect and reflect on what our own judicial system has evolved into.
3. In a system that is built on the idea of the separation of powers, each branch of the state feels that it operates in perfect internal balance. Indeed, in India, the threat to judicial independence is most commonly seen as one emerging from the executive branch, and occasionally the legislature. Today, we have a situation which was foreseen many decades ago, by Chief Justice Y.V. Chandrachud, when in 1985 he observed, “There is greater threat to the independence of the judiciary from within than without...” Mind well, these threats many a times are orchestrated at the behest of the executive.
4. Do not mistake all that I have said over this past hour or so as mere criticism. Instead, you must realise that I am pointing to an opportunity that lies ahead for the judiciary. If anything must happen as a consequence of this unfortunate incident, it is reform. The judiciary needs immediate reform on multiple fronts. Why, for instance, is the issue of applicability of RTI to the CJI still pending for the last 10 years after the decision of the Delhi High Court? And surely, the time has come to do away with the collegium system, and relook at the opaque system that the judges have constructed for themselves. And most certainly, this is an opportunity to introduce reform in the allocation of cases. The role played by the CJI as master of the roster should be more consultative process than it is today. Perhaps the Supreme Court can consider framing rules along the lines of the ECJ and ECHR. A healthy balance of senior and junior judges is also desirable, as I discussed earlier. There must also be efforts made to democratize the position of the CJI and High Court Chief Justices. They all enjoy immense powers in the courts, as their roles are structured today. It would be wonderful if the present CJI would take up these issues. In any case, Justice Gogoi has raised some of these questions, and if he is indeed next in line to the office of CJI, he must use his time to change these processes.
5. India has been fortunate to count amongst its public intellectuals, women and men who have been fine lawyers and judges, who understand and appreciate the many facets and nuances of judicial independence, transparency and fairness. In their hands, I know that the judiciary will not be allowed to implode or compromise on its integrity. In the hands of a probing and critical fourth estate, I know that the judiciary will be compelled to stand up and play its role as the upholder of constitutional values to its fullest and truest standard. In the hands of the people of India, I know that the judiciary will remain the most important and trustworthy institution this country has known in its modern history. Now, all I can ask you all to do is to live up to your respective roles with complete and utter sincerity.
Thank you..
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)