Supreme Court Crisis: Problem is Collective Burial of the NJAC

Questions raised by the four SC judges are valid but one can’t deny part of the problem is collective burial of NJAC

“Corridor Talk” was a WhatsApp group popular among several Madras lawyers. It’s rare that lawyers are ignorant about happenings inside the court, be it a news about a judge or his activities. Gossip among lawyers in the lobbies of the Bar room or the canteen hall is a staple diet without which the Bar can’t survive.

Most of the talk among the lawyers during the waiting time in between the cases would be about the roster for the day. More than horoscopes for marriage, lawyers can predict exact outcome of the case.

Understanding Authority of the CJI

Much has been written on the recent presser by four senior judges of the Supreme Court. The major poser raised by them was about the ‘roster despotism’ by the Chief Justice of India. They expressed their shock over the fact that some sensitive cases were sent to junior judges, ignoring the benches headed by senior ones.

Was it a random selection or an instance of “bench fixing”? Immediately, a newspaper ran a story that in the last 20 years, 15 sensitive cases were allotted to judges who were not strictly senior in the chronological list of judges of that court.

The Chief Justice of India is also the master overlooking the roles of the court, something that’s part of the legacy inherited from the British. If work is not allocated by a standard method, it may result in anarchy. Hence, the job was entrusted to the head of the family.

Latter days saw social action litigations (now called PIL) being entertained, resulting in consequent receipt of letter petitions.

The Supreme Court ruled (2008) that the courts lack ‘epistolary jurisdiction.’ Therefore, any letter petition addressed to a particular judge has to be routed to the Chief Justice who may consider entertaining it as a legal case and also allot it to a particular bench for hearing the same.

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Issue Over the Roster

The allotment of cases, as per the roster that is prepared periodically in each court (periods may vary), has always been difficult. Perhaps it may be a first instance when Justice Karnan demanded a particular roster, and when denied, abused the Chief Justice of the Madras High Court.

But there are many instances when the Chief Justices of various High Courts and the Supreme Court had allotted work to the benches of their choice. It was widely believed that by making such allotments, the result itself may be guaranteed.

There was a time when the authority of the Chief Justice was never questioned.

But the Chief Justice can act capriciously, and therefore he needed a check/opinion of two other senior-most judges, as was made mandatory in the Second Judges’ case (1993). Thus came the collegium system of appointment.

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Valid Questions Raised by SC Judges

The difference of opinion among the judges is not something new. The Bar always knew about it. Even the government is privy to that. In the present dispensation, the Finance Minister and the Law Minister, who were practicing senior advocates before their new assignment, must be getting daily quota of such news from their erstwhile contacts.

The press conference held by the ‘four’ had only brought the matter to the notice of the public, something the Bar knew in advance. The question is not whether the unconventional method adopted by the four judges is to be condemned. But on the other hand, the issues raised by them must find an answer.

How to tame the power of the CJI? Who will be the lion tamer? All the major political parties have expressed that the judiciary itself must find a solution to the problem. The Bar led a delegation to plead with both the warring sides to come to terms sooner lest their names be tarnished.

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Burial of the NJAC

The question is not that simple. The bigger problem is the near unanimous burial given to the National Judicial Appointments Commission (NJAC). The unprecedented power assumed by the top five in exclusively deciding the matter of appointment to the higher judiciary is the root cause for all the problems.

Hitherto, there was no single opinion in the BJP to revive the constitutional amendment and the NJAC in a new form. May be the follow-up may sow seeds for a new idea about the resurrection of the NJAC.

Similarly, the debates continued whether the Supreme Court should have judges based on seniority of appointment or should only the capable ones adorn the apex court, giving a go-by to the seniority, thereby making selection based on merit.

Apart from all these, there is also a danger of an impending impeachment attempt against the current CJI. In such an event, what will be his future and what kind of twists and turns such a move may take is only a matter of speculation. Ultimately, the presser held by the four senior-most judges of the Supreme Court has thrown up more questions than answers.

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(Justice (retd) Chandru Krishnaswami is former judge, Madras High Court. The writer was among the jurists who had recently written an open letter to the CJI regarding arbitrary allocation of benches. 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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