Why there is a need to check Chief Justice's power over the SC roster

As the administrative head of the SC, the CJI can influence the result by simply choosing judges that he thinks may favour a particular outcome

The Supreme Court of India was thrown in a crisis when four senior Justices of the SC addressed a press conference and expressed apprehensions about how the SC was run. The main issue raised by the four judges was about the allocation of cases in the SC. In this Business Standard Special, Sanjay Hegde and Pranjal Kishore take a closer look at the issue. On May 7, 1997, the Supreme Court of India adopted a Charter called the “Restatement of Values of Judicial Life”. This was to serve as a guide to be observed by Judges and was considered essential for an independent, strong and respected judiciary. The charter advises Judges to be ‘aloof’, and ‘not enter public debate’ or ‘give interviews to the media’. 

Last Friday, four senior Supreme Court judges bypassed these principles. Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph addressed a press conference to inform the country that not all was right with the functioning of the Apex Court. It is difficult to remember a similar instance from anywhere in the world. Justice Chelameswar himself described their action as "an extraordinary event in the history of any nation". 

The conference itself has thrown up more questions than answers. It  appears that two months ago, these very judges had written to the Chief Justice complaining about “certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the offices of the Hon’ble Chief Justice of India.” The letter also points to an attempt on October 27, 2017, by a two judge bench to re-look the working of the verdict in the NJAC case.  The case dealt with appointments to the higher judiciary. That case however, was closed on 8th November, 2017 by a three judge bench headed by the Chief Justice.

It would appear that the concerns of the judges have still not been addressed. The apprehensions raised are not surprising. To appreciate the issues at hand, it is imperative to keep aside the personalities involved, and understand the institutional framework of the Supreme Court. 

Judges play an adjudicatory role. In this, their discretion, at least in theory is guided by formal law – statutes, precedents and the like. They are also expected to give reasons for their Judgements. The reasons are open to public scrutiny and liable to be re-visited in later cases. This equally applies to the judgments of the Chief Justice of India. It is common to refer to the office as primus inter pares – first amongst equals. 

Besides his adjudicatory role, the Chief Justice of India also plays the role of the administrative head of the Court. In his administrative capacity, the Chief Justice exercises the prerogative of allocating cases to particular benches. The Chief Justice also decides the number of judges that will hear a case. Thus, he can influence the result by simply choosing judges that he thinks may favour a particular outcome. Such administrative powers can be exercised without collegial consensus, and without any stated reasons. 

In the exercise of his administrative powers, the Chief Justice is largely sheltered from public view. This creates an administrative authority, free of many of the constraints imposed on other agencies. The administrative powers of the Chief Justice have grown with time. However, the Court has failed to devise a parallel mechanism to keep a check on these powers. A system that works on cloistered discretion, even if exercised rightly, was bound to run into the situation we find ourselves in today.

A slew of corrective measures are now required. The Supreme Court Bar Association has suggested that henceforth, all Public Interest Litigations, be heard only by the 5 senior-most judges. They have also called for a meeting of the full-court to resolve issues. These are well-intentioned suggestions, but are unlikely to do much in the longer run.  Over time, the Court will have to come up with a mechanism where the powers of the roster are not subject to the will  of the Chief Justice alone. 

A chink in the judicial armour has opened up the gates for people of all hues to swoop in. Everyone and their grandfather seem to have an opinion about the ills that plague the judiciary. Whatsapp groups are flooded with incorrect facts. This can be counter-productive. Justice Kurian Joseph, who was a part of the press-conference, has been quoted as saying: “This is not an issue that requires mediation from outside. This is an internal issue of the institution and the institution will sort it out. A correction inside the institution is required.”

The principal secretary to the Prime Minister made an attempt to call upon the Chief Justice, but was reportedly snubbed. Besides this, the Government has not been caught dipping its hands into the entire episode. The Chief Justice himself has shown remarkable restraint. On Friday afternoon, he continued hearing cases listed before him, like nothing had happened.

Such restraint has not been forthcoming from the other ‘pillar of democracy’.  TV channels have rushed in where cooler heads have preferred reticence. Anchors have reiterated WhatsApp slander, attributing political motives to the judges. One anchor in particular thundered that the four  judges were taking part in “political confabulations” and ‘wanted the nation divided’. The same anchor’s previous employers wondered ‘if the revolt was sponsored’.

Neither of the writers are supporters of the (mis)-use of the law on contempt. The dignity of the Supreme Court lies on surer foundations. However, under existing law, an attack of this nature ‘has the inevitable effect of undermining the confidence of the public in the judiciary.’ Simply put, it is contemptuous. Under, the Contempt of Courts Act, the Attorney General is the guardian of the contempt. It remains to be seen, whether one of the oldest statesmen in the profession invokes these provisions, in order to arrest the malaise.

The importance of the judiciary to the nation cannot be over-emphasized. Judicial delays lead to dissatisfaction and disillusionment amongst citizens. However, the common person still turns to the judiciary for succour. It is the one institution in which citizens retain some faith. Despite all its shortcomings, it is still regarded as the one redeeming star, 'the ever fixed mark' in an otherwise dark and depressing firmament.

The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot