Democracy Is Not in Danger, This is Just an Internal Feud

Judicial feud at Supreme Court doesn’t tantamount to democracy being in danger.

The action by four senior-most Supreme Court judges raises the question whether the letters that have been released can be considered as a fact in the eyes of law as they were mere allegations by the very admission of revolting judges. Since only a judicial body can establish and declare a state of affair as fact or mere figment of imagination, who gets to decide what is fact and fiction in the current scenario.

The nature of dispute is administrative, where the concerned parties will find it difficult to sit in judgment of this feud.

Dear Lords, I have a question as to how an issue of ‘forum shopping’ is even acceptable when in the name of judicial independence vis-à-vis appointment of SC judges, this court has virtually usurped the de jure and de facto power of appointment to itself, instead of the President as envisaged under Article 124.

Argument of a possible ‘forum shopping’ is self-incriminating, especially when it is not possible to appoint any judge at the Supreme Court without the consent of the court itself. All the judges are appointed by the Supreme Court through the collegium.

Memorandum of Procedure on Appointment of CJI

Article 124 envisages two kinds of appointments – the Chief Justice of India and Supreme Court judges from the bar, bench and academia.

It was in SP Gupta v Union of India, 1981 Supp SCC 87, that such an idea was mooted by Justice (later CJI) Bhagwati and, Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441 gave it the status of law.

Later, the collegium was defined in ‘The Memorandum Showing the Procedure For Appointment of the Chief Justice of India And Judges of The Supreme Court of India’ with the memo saying that the CJI should be appointed on the basis of seniority of sitting Supreme Court judges. The memo works as a covenant for the appointment of Supreme Court judges.

The memo also says that the decision of the CJI is binding on the President, the appointing authority originally envisaged in the Constitution, in cases of differing opinion regarding the appointment of candidate recommended by the CJI (through collegium).

According to the memo, no collegium is required for the appointment of the CJI. Seniority, ipso facto qualifies a person to claim the CJI status, no consultation is required of any kind, and rightly so.

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Argument About Seniority

Your most revered Lord, I was impressed by the argument that the CJI is not superior to other puisne senior-most judges; he is merely the ‘first among equals.’ It stems from the argument that the Supreme Court, as a constitutional body, is not inferior to the executive or legislative organ, even in the matter of appointment under Article 309 or Article 16.

In the light of the above scheme of appointment of judges, I fail to understand how on earth it is conceivable that the decision by judge A, B or C threatens the democracy. If the CJI is merely the ‘first among equals,’ this argument, therefore, makes the seniority of judges on the Supreme Court bench irrelevant and inconsequential, so far as the decision-making is concerned.

This argument about the seniority of judges is again absurd in light of the ‘first among equal’ rule because all are equal when it comes to decision-making.

Seniority can either be that of office or related to age. For example, a judge might have been working as a Supreme Court judge for a longer duration than a judge who is elder to him/her in age, but does not get elevated to CJI because no one can remain a judge of the Supreme Court beyond the prescribed age limit of 65 years. To argue that association with the Supreme Court is the sole criteria is again absurd because the High Court and the Supreme Court are not always vertically placed; in fact, the High Court has more powers than the Supreme Court in certain matters.

Any argument related to seniority results in an artificial and arbitrary distinction between the judges from the collegium and other judges of the Supreme Court – regular or ad-hoc. Therefore, it is not a plausible argument from any stretch of imagination that a judge must be assigned a case because he is senior to the one who has been allotted the case as it defeats their own argument of ‘first among equals.’ This is also reflected in the SC Rules 2013 order VI Rules I and II that gives the CJI absolute power to decide the bench and its constituent.

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Administrative Act is Non-Justiciable

Former Chief Justice of India JS Verma in the Second Judges (Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 44) case had held that the appointment of a judge is a judicial act and thereby not justiciable.

By the same token, allocation of case to a particular bench or judges is an administrative act and non-justiciable.

If we simply take into account the rules of 2013 (made by SC exercising Article 145, ie, rule-making power) and its handbook on practice and procedure of the Supreme Court, we learn that the power to appoint a single judge bench, a division bench of two or three judges, a constitutional bench, rests squarely with the CJI.

The only contradictions that perhaps exists is in the review petition where the SC Rules 2013 (Order XLVII Rule 3) requires that the bench for review petition shall be placed before the same bench, as far as practicable, that disposed off the matter against which review is being sought; same is the case with curative petition. Even in these two scenarios, the rule is not absolute, as the rule mentions “as far as practicable” a review petition shall go to the same bench.

To say that judge X is biased and is favoured by CJI in order to get a premeditated decision would tantamount to destroying the concept of judicial independence. What if tomorrow individuals say that they want a judge X and reject judge Y because he bears a certain identity not seen favourable by the pleader.

CJI Reigns Supreme

Thus, in the matter of allocation of cases, if the opinion of CJI and other senior-most judges are in conflict, the primacy should be that of the CJI.

One can conclude it here that the Supreme Court functions both as a constitutional and appellate court. It is not democracy in danger, it’s merely an internal feud of an institution, which is what happens in any legal system, and that is why we have the rule of law to minimise such conflicts.

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(The writer is an author of the book Indian Capital Market: Legal Regime and currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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