There is no doubt that January 12, 2018 will become a significant date in the judicial history of India. It is the first time that sitting Justices of the Supreme Court of India have directly addressed the media to draw attention to their concerns about the inner workings of this institution. The stakes have been raised considerably since this act of public criticism has come from the four senior-most Justices and could be narrowly construed as one that is specifically directed at the present Chief Justice of India (CJI). On the other hand, this act of public criticism can also be interpreted as one motivated by concerns related to the preservation of institutional integrity.
The letter that was jointly released to the press by Justices Chelameshwar, Gogoi, Lokur and Joseph raises two issues that directly relate to judicial administration. The first of these is the allocation of sensitive matters to benches headed by relatively junior Justices while overlooking the senior-most Justices. The second issue is that of considerable delay in the finalization of the Memorandum of Procedure (MoP) for facilitating appointments and transfers in the Higher Judiciary. The text of the letter read along with the remarks made in the press conference suggest that these four Justices have not been on the same page as the present CJI when it comes to the handling of these matters.
As a preliminary point, we should take note of the obvious linguistic errors being made by the coverage of this development in the print and electronic media. It is erroneous to describe it as a ‘revolt’, ‘rebellion’ or ‘mutiny’ within the Supreme Court of India. We use these words when rights-bearing citizens take up arms against their rulers with the intent of overthrowing them. As Alexander Hamilton had famously said in the 18th century, judges do not possess the power of the sword or that of the purse. So it is quite misleading to describe their actions with words that evoke the imagery of resorting to physical violence. Neither have the four Justices disobeyed any specific directive from the present CJI or expressed the intention of doing so in the future.
Taking a cue from Professor Upendra Baxi’s recent writings, we should distinguish between criticisms of public institutions that flow from specific episodes and those which seek to highlight structural flaws. Undue emphasis on the personalities involved in a particular controversy and its optics can distract attention away from what is really at stake. Keeping this in mind, it might be worthwhile to structure our inquiry around two questions. Firstly, was it appropriate for the sitting Justices to publicly express their disagreement with the present CJI? Secondly, what are likely to be the consequences of this act of public criticism?
Ordinarily, sitting judges speak through their decisions. Disagreements between them are reflected in plurality or dissenting opinions rendered after hearing cases. Internal deliberations that lead to substantive decision-making are conducted in a confidential manner to avoid undue influence from external actors, be it from powerful public officials or interested private parties. In that sense, the element of secrecy and confidentially associated with the judicial process is closely tied to normative expectations about rendering judgments without fear or favour. In comparison, it is not clear why principles governing administrative matters such as case-allocation to specific benches and judge-selection should be completely shielded from public scrutiny. This is not to say that these administrative matters should be conducted in full public view. Incessant media coverage might end up obstructing the discharge of routine judicial functions. Excessive public speculation about the credentials and integrity of judges can affect their morale and make it harder for them to give judgments that might be right in the long-run but unpopular in the short-run. However, a reasonable middle ground can be adopted in disclosing the general principles and conventions that are followed in these matters. The rationale for specific decisions can be disclosed in a post-hoc manner, as was the case with the Supreme Court collegium’s recent decision to publish the minutes of its deliberations on appointments and transfers. Public disclosures of this kind may provide fodder for some frivolous criticisms but professionally trained judges can separate the wheat from the chaff. At an aggregative level, this would lower the scope for lawyers and litigants to question the credibility of serving judges.
Coming to the specific issue of case-allocation, the four sitting Justices seem to be suggesting that the present CJI has disregarded some of these established conventions. Cases are instituted under specified subject categories that are enumerated in the rules of practice, which are well known to the Advocates-On-Record (AORs) who are specifically designated for this purpose. Since the Supreme Court of India sits in multiple benches, the allocation of cases is usually done by pre-assigning these specified subject categories to the various benches. This system has become quite efficient since the computerization of the Supreme Court Registry’s record-keeping systems in the mid-1990s. The Chief Justice of India (CJI) performs the formal role of approving the roster-allocation. As the head of the institution and the ‘master of the roster’, the CJI retains some discretion in allocating matters that touch on questions of public importance. It is the use of this discretionary power in some recent instances which has been questioned by the four senior-most Justices.
As outlined earlier, the gist of their grievance seems to be that some sensitive matters have been allotted to Justices with relatively lesser experience as opposed to the established practice of allotting such matters to Justices with comparatively more experience. The popular media is viewing this disagreement through the prism of two specific cases. One of them involves allegations of bribery by a medical college and the second one deals with the suspicious death of a trial judge who was examining allegations of an important political leader’s complicity in an extra-judicial killing. The use of discretionary power in such matters has implications for the interests of a larger class of litigants who approach the Court. It feeds fears about the fixing of benches in order to ensure outcomes desired by influential parties.
In the matter of judge-selection, the issue is far more complex and multi-layered. The ‘collegium’ model for supervising appointments and transfers in the higher judiciary has evolved through the expansive interpretation of the applicable constitutional provisions in two verdicts rendered during the 1990s. In many ways, this was the higher judiciary’s long-term reaction to the evident interference by the executive branch which was most pronounced in the years leading up to the internal emergency of 1975-1977. Providing for the ‘concurrence’ of the CJI and the next four senior-most judges as part of the ‘collegium’ was construed as a check against domination by the executive branch. However, in recent years, there has been trenchant criticism of the ‘collegium’ model as well. The core of this criticism is that while the ‘collegium’ model was conceptualized in order to protect judicial independence in the institutional sense, there are increasing concerns about how its actual functioning over the last two decades has led to the undermining of the ‘personal’ independence of judges in several cases. While it is understandable that factors like inter-se seniority among serving judges and equitable regional representation are being considered, there has been growing skepticism about members of the collegium acting on considerations that are not directly linked to the capacity for judicial work. In a few instances, there have been apprehensions about personal friendships and dislikes playing a more determinative role than the publicly verifiable track-record of the person being considered for appointment to a High Court or promotion to the Supreme Court. Furthermore, the ‘collegium’ had earlier insisted on maintaining secrecy when it came to the contents of its deliberations.
It was in this context that the present Union government had proposed the establishment of the National Judicial Appointments Commission (NJAC) which would replace the ‘collegium’ with a body consisting of the three senior-most Justices, the Union Law Minister and two ‘eminent persons’ selected by a high-powered committee. However, the constitutional amendment and the enabling legislation dealing with the same were invalidated by a five-judge bench in a case decided in October 2015. The main ground for this decision was the apprehension of undue influence by the representatives of the executive branch. The effect of the same was that the ‘collegium’ model has continued. However, the judges who decided the NJAC case invited suggestions from the public to improve the functioning of the collegium, especially in the direction of transparency. Since then, there has been a frequent back-and-forth between the senior-most Justices and the Union Government on the framing of a Memorandum of Procedure (MoP) to better regulate the process of judge-selection. Protracted delays in finalizing the same has led to an escalation in the number of vacancies, especially at the level of the High Courts. It goes without saying that any contemporary discussion on judicial administration would touch on this persistent problem.
To address the question of whether public criticism was warranted, we need to engage with another question. How should we view the nature of the judiciary? Some commentators have opined that the present episode is analogous to a sporting scenario where senior-team members openly disagree with their captain’s decisions. Others have gone further and made the comparison with soldiers openly disregarding the orders of their commanding officers. Such comparisons are completely missing the point. Judicial discourse is modeled on the idea of engaging with disagreements in a calm, accommodative and self-reflective manner. Some of the best judgments are those where sitting Justices have strongly disagreed with each other’s reasoning and conclusions while still maintaining the norms of civility. The apex court’s judgments not only provide authoritative guidance for lower courts and future decision-makers but also facilitate serious discussions about the social, economic and political problems of the day. In many cases, they espouse views which are otherwise not likely to be heard inside the elected legislatures or by those who hold high offices. In its ideal form, judicial deliberation can serve as a model for reflecting on the contours of our civic obligations. So why should there be hesitation in politely airing disagreements about the conduct of judicial administration? If one takes a comparative view, many nations provide for the robust involvement of legislators and civil society groups in matters related to the functioning of the courts.
The judiciary can no longer be seen as a closed system akin to a family, a sports team or a unit of the military. It would be unfortunate to describe the four Justices as ‘rebels’, especially when their act of speaking up comes across as a great opportunity to incrementally move towards the norms of a public institution that are suited for the 21st century. We should view the present controversy as an invitation to think more deeply about the structure of justice-delivery in our country. One can only hope that this episode will draw attention towards several questions that deserve thorough public scrutiny with due regard for evidence-based discussion. What are the major causes for the large shortfall of judges in the High Courts? Why is there a concentration of work among a few lawyers despite a continuous increase in the number of lawyers being enrolled every year? Why have we not been able to ensure meaningful social diversity in the composition of the Higher Judiciary? Is there a case for deconcentrating the Supreme Court by setting up regional benches in order to improve access for litigants? Why do we find it difficult to attract the best law graduates towards careers in the subordinate courts? What can be done to make judicial proceedings more intelligible to clients? How can we ensure the provision of legal representation to those who need it the most but cannot afford it? There are many questions of this nature which need to be discussed in a forward-looking manner while keeping aside older ideas of functional hierarchy.
Lastly, one can only speculate about what might happen in the short-run. Sitting Supreme Court Justices have strong protections for their tenure. They can only be removed through an impeachment motion which is passed by a two-thirds majority in both Houses of Parliament. This is unlikely to happen. Since the present CJI is due to retire in October 2018, it is possible that this episode may disrupt the functioning of the collegium for the better part of the year and this may lead to further delays in appointments and escalation in the number of vacancies. An even less desirable possibility is that these four judges may have to face mild forms of retaliation and they may be kept away from deciding significant cases. Ironically, such a response would confirm the crux of their criticism. If there is such retaliation, it is conceivable that one or more of them may consider resigning in order to avoid undue harassment. In such an eventuality, this episode will become comparable to instances in the 1970s where Justices had resigned after being superseded owing to their anti-government stance in important judicial verdicts such as Kesavananda Bharati (1973) and A.D.M. Jabalpur (1977). Until something as drastic as that happens, it would be unwise to describe the present controversy as the greatest judicial crisis since Independence. Let us hope that the present CJI and the four Justices can work out a constructive compromise, so that we can remember these days as a moment of catharsis rather than disappointment.
Sidharth Chauhan is presently an Assistant Professor at the National Academy of Legal Studies and Research (NALSAR), Hyderabad. He has previously worked as a Law Clerk under a former CJI at the Supreme Court of India (2008-2010).