The CJI’s Way or the Highway in the Supreme Court?

Let’s not allow the issue of arbitrary allocation by the CJI of politically sensitive cases to get sidelined.

Four senior judges of the Supreme Court have written to CJI Dipak Misra expressing concerns about the functioning of the court.

(Photo: Erum Gour/The Quint)

At last, the Indian democracy is showing signs of maturity. Four sitting senior judges of the Supreme Court have come out in the public to criticise the manner in which some Chief Justices (of the Supreme Court) have exercised – and continue to exercise –administrative powers in the day-to-day functioning of the highest court. Some have criticised the move as “childish,” while others have rebuked the judges for washing their dirty linen in public.

But what most of us have failed to appreciate (perhaps deliberately so) is that, in the last 67 years of the Supreme Court, not a single sitting judge of the Supreme Court has taken to the press to unveil a systemic rot in the working of the court, let alone a judge who is slated to become the next Chief Justice of India.

Therefore, 12 January marks an important date in India’s constitutional democracy when the call for reform came not from outside, but from within the judiciary.

Distracting From the Main Issue

Naturally, some of us, who have benefited from the corruption that has prevailed in the higher judiciary (over the last several decades), will be alarmed at this development. The print and electronic media is replete with expert opinions on whether there is an ego issue at play between the CJI and the four judges, and whether it is the case relating to the suspicious death of Judge BH Loya. The special CBI judge was hearing the high-profile Sohrabuddin Sheikh fake encounter killing case, in which BJP chief Amit Shah was a main accused (till being discharged by the judge who succeeded Judge Loya). The episode has, in fact, triggered the press conference.

A closer look, however, at the letter written by the four judges to the current CJI will reveal that they are not pointing fingers at the CJI himself. Nor are they referring to any specific case of abuse of administrative power.

Too busy to read the whole story? Listen to it here:

What they have categorically highlighted is that “certain orders passed by this court have adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble Chief Justice of India.”

Whether they should have engaged the press is not the issue here. We can debate that for weeks and months, but in the process, the larger issue of arbitrary allocation by the CJI of politically sensitive cases to hand-picked benches will get sidelined.

‘Presser Speaks Volumes About CJI’

That the judges took to the press to express their anguish speaks volumes about the way in which the holder of the office of the CJI conducts himself.

For instance, prima facie, it would appear the current CJI was well aware of the underlying issues but failed to address them within a reasonable time period. As I have pointed out in another article, there is no law currently in India under which a Supreme Court judge, much less the CJI, can be held responsible, let alone guilty, of misconduct or abuse of power (short of an unworkable parliamentary impeachment process).

What option did the judges then have, if not to inform the people of this country about the wrongs taking place in the Supreme Court?

On Charges of Bench Fixing

One of the important charges against the office of the CJI in the letter is that “there have been instances where cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this court selectively to the benches of their preference without any rational basis for such assignment.”

It is true that the CJI – as the master of the roster – has the power and privilege to determine the roster. But that power must be exercised in a fair and disciplined manner and not arbitrarily. The power to determine the roster does not make the office of the CJI above the law, or above the brother judges of the Supreme Court. It is hard to disagree with the four judges when they write:

The Convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different numbers/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well-settled in the jurisprudence of the country that the Chief Justice is only the first amongst the equals – nothing more or nothing less.

The Implications of the Medical College Bribery Case Bench

Unfortunately, the concentration of the power on the office of the CJI to constitute benches of the Court and allocate cases to them has allowed arbitrariness and unfairness to brew. Multiple cases in recent past indicate this.

Take for instance, the medical college bribery case, which involved a CBI investigation into a charge of bribery to procure a judgment of the Supreme Court, which the current CJI himself was handling. In such a situation, fairness demands that the CJI (or any judge for that matter) not hear a case (or the judicial or administrative side) in which he is involved.

On the contrary, the CJI withdrew the case from five senior judges of the Supreme Court to whom it had been referred and listed it before three junior judges. There are other instances too, when benches have been fixed, perhaps to suit a predetermined political outcome.

Justice Must be Seen to be Done

Some would argue that the Supreme Court as an institution comprises of judges of unmatched intellectual standing and wisdom and, therefore, it is out of place to lay undue emphasis on which judge hears which matter. Of course, it is hard to disagree with that proposition. However, even harder to disagree with is the oft-repeated saying of Lord Chief Justice Hewart in R vs Sussex Justices, exparte McCarthy: it is of fundamental importance (and not merely of some importance), that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The administrative powers vested on the CJI are extraordinary powers and the manner in which these powers are exercised will more often than not have a direct bearing on the outcome of a particular case. The power to determine when a matter shall be heard presupposes, if the power is exercised arbitrarily, the power to delay the hearing of the matter. Likewise, the power to select a particular judge to hear a particular matter will, directly or indirectly, have a bearing on the final decision.

It is unfortunate that junior judges of the Supreme Court, before whom certain matters were listed, proceeded to deal with the matters instead of requesting the CJI to list the matters before the appropriate benches comprising senior judges of the Court.

The Way Here On

The four judges have aptly “discharged a debt to the nation” by letting the people of India know about the crisis in the highest court of this country and the far-reaching consequences that it will have on Indian democracy.

It is now for the CJI and other judges of the Supreme Court to sit together and address the issues raised by the four judges in their letter and prepare a code of conduct to be followed in future.

For now, the CJI would be well-advised to reconstitute the benches that were recently constituted on cases relating to the Aadhaar, decriminalisation of homosexuality, among others, so that justice is seen to be done and public faith in the judiciary is restored.

(The writer is a lawyer and legal academic. He tweets at @ashish_nujs. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)

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