Dissenting SC Judges’ Letter Points Fingers at the Centre: Tharoor

Scathing letter by the SC judges is an embarrassment for the Centre that has been dragging its feet over MoP.

On the face of it, the explosive press conference on Friday, 12 January, of the four senior-most judges of the Supreme Court need not have caused the convulsions it has. As the judges’ letter, which they released as an afterthought, makes clear, the issues they have raised relate to arcane matters of judicial procedure and convention: who gets to assign cases to a particular bench, and the basis on which each case is assigned.

But given the specific nature of the cases involved, and the completely unprecedented decision of the four judges to go public rather than to keep their concerns behind closed doors, Friday marks a serious moment for our democracy and its evolution.

At a time when India is facing a crisis of its public institutions, with its legislature and executive in the hands of a largely discredited political class, the judiciary has been a vital pillar of our democracy. Faith in its impartiality is a bedrock: whether a petty crime or a constitutional crisis is involved, the fact that the public believes an impartial judge will settle the issue fairly is what sustains the public’s belief in our system. Indian democracy cannot afford to see the judiciary undermined.

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Strength of Democracy Dependent on Credibility of Courts

The soul of the judiciary lies in its independence from the other organs of our government. However, independence is not restricted to non-interference by the executive or the legislature in the functioning of the judiciary; the court itself must also be independent from arbitrariness. Justice J Chelameswar is apt in stating that the strength of our democracy largely depends on the credibility of our courts, especially that of the highest court of the land.

The judiciary is arguably, along with the army, the most respected of India’s institutions, but its credibility relies strongly on its transparent and harmonious manner of functioning.

That is why we have lengthy judgments laying out the judiciary’s reasoning in a case, helping people understand the basis of a judge’s conclusions, and that is also why the concurring or dissenting judgments on each principle at stake are so necessary.

So, when the four most senior honourable judges of the Supreme Court (barring the CJI), including the judge slated to become the next chief justice of India, raises questions about the supposed opaqueness in the conduct of the court, it is a matter of grave concern for our country.

Failure of Internal Grievance Redressal Mechanism

The unprecedented act of the Supreme Court judges in addressing the media shows the failure of the internal grievance redressal mechanism on the administrative side of the court. As pointed out by the judges, as per convention, the Chief Justice of India is the Master of the Rolls only for administrative convenience.

The Chief Justice is primus inter pares – the first among equals – and it has been understood that important matters on the administrative side of the court should be determined in a collective manner, in consultation with members of the collegium.

This is something that the judiciary must resolve; no one else can do it for them.

The four dissenting judges, in their letter, have alluded to two cases whose handling troubled them. It is fair to say that the CJAR case has raised serious concerns within the legal fraternity and in the country as a whole. It is also disturbing to note that Justice Gogoi indicated in the press conference that there is disagreement among the senior judges regarding the handling of the Judge Loya case.

It is important that the conventions of the court are maintained and that the judiciary acts in a manner that leaves no scope for the fuelling of speculation and innuendos that discredit the court.

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Questions for the Government Over Memorandum of Procedure

While the judiciary must remain sacrosanct, it must be said that this crisis is also an occasion to point fingers at the conduct of the Central government. In their letter, the four judges have also pointed out the failure of the Central government in relation to the appointment of judges in the higher judiciary.

While the Supreme Court struck down the NJAC Act 2014 as passed by Parliament, it did recognise the need to have a Memorandum of Procedure (MoP) for appointment of judges to members of the higher judiciary.

However, as highlighted in the letter signed by the Supreme Court judges, the then Chief Justice of India had sent the finalised version of the MoP to the Central government in March 2017. We are now in January 2018, but the government has failed to respond to the MoP in all these months.

This raises serious questions about the handling of the matter by the Central government, especially in light of the numerous judicial vacancies which need to be filled across the country. Furthermore, the judges have pointed out that for a matter as important as the MoP for the appointment of judges, it should be discussed by the chief justice in conference with the full court.

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Elephant in the Room Can’t be Ignored

Some will raise questions about the manner in which the four judges have come out and spoken to the press, and whether that was appropriate; others will point to the failure of the Chief Justice to resolve these issues with his colleagues before matters came to such a head. These issues are now beside the point; the cat is out of the bag, and if one may be forgiven for mixing zoological metaphors, the elephant in the room can no longer be ignored.

The media – not always the most responsible custodian of our democracy – has aired the crisis in great detail all day on our TV channels, and one can no longer wish that it simply goes away. Whether “the nation wanted to know” or not, it now knows, and it wants a resolution in the interests of the democracy that we all cherish. It is now up to the Chief Justice of India and the rest of the judges to take steps to find a solution to the problem rather than leaving the crisis to fester in the open.

The judges have taken an oath to protect the Constitution of India. The harmonious and independent functioning of the court is an indispensable part of the discharge of this duty.

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(Shashi Tharoor is a Member of Parliament for Thiruvananthapuram in the Lok Sabha. He can be reached @ShashiTharoor. 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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