Fundamental Fight

The most basic guarantees of our democracy are at the core of the dramatic  and unprecedented salvo fired by four senior judges of the Supreme Court,  argue Sanjay Hegde and Pranjal Kishore 

By Sanjay Hegde and Pranjal Kishore
  • Published 14.01.18
Justice J. Chelameswar

A portrait of Justice H.R. Khanna adorns a wall of Courtroom No. 2 of the Supreme Court - the same courtroom that is today presided over by Justice J. Chelameswar. Justice Khanna is remembered for his dissent in the ADM Jabalpur case. At the height of the Emergency, four judges of the Supreme Court held that an individual's fundamental right to life could be suspended by Parliament. Justice Khanna was the sole judge that held otherwise. His dissent is a part of legal folklore.

A lesser known story is that Justice Khanna almost did not hear the case at all. He was not part of the original bench slated to preside over the matter. It was rumoured that Chief Justice A.N. Ray would constitute a bench favourable to his pro-government point of view. Jurist C.K. Daphtary, then a bit too old to argue the case, yet played a crucial role. He called on Chief Justice Ray and persuaded him, that the traditions of the court required the five seniormost judges of the court to hear the case. It was because of the last minute change of roster, that legal historians today can proudly point to the one flame of liberty that adorned the court in its darkest hours.

Justice Ranjan Gogoi

The allocation of work in any Court belongs to the Chief Justice alone, who is the master of the roster. If the Chief Justice or his office could be induced to ensure that sensitive cases be guided towards judges with strong views on the subject, the fate of the matter is likely to be sealed. Lawyers and academics have long debated whether the composition of a bench, determines the outcome of a case. Formalists hold that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. Realists argue that psychological, political, and social factors influence rulings as well. The realist view is commonly caricaturised by the trope that justice is "what the judge ate for breakfast".

The Supreme Court has often been described as "polyvocal". It speaks through different benches. These benches often give different interpretations, to the same law. This has led to incoherence and inconsistency. It is often a Supreme Court lawyer's truism in India, that the fate of the case depends on the face of the judge. No tenant is said to have lost before Justice D.A. Desai. Every husband in a matrimonial matter had a tough time before Justice A.M. Ahmadi. Men on death row would pray that their matter came up before Justice M.B. Shah. They believed that his respect for ahimsa led him to never confirm a death sentence. Judges bring in their life experiences and philosophies into the judicial calculus. The practitioner of law often factors in his knowledge of the judge's thinking, when he tailors his arguments to suit the equation. However, no lawyer has a say in deciding which judge he draws for the hearing of his matter. The office of the Chief Justice alone wields the power of the roster.

Justice Madan Lokur 

On Friday last, four of the seniormost judges of the Supreme Court - Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph - held a press conference informing the nation about what they perceived was the mishandling of this power.

Some television news channels have gone to town attributing political conspiracies, where none exist. The prime-time need for sensationalism deserves to be condemned. The Supreme Court is perhaps the most critical of our constitutional institutions. To avoid needless controversy, it is imperative to understand the context in which Friday's press conference was held.

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 National Judicial Appointments Commission (NJAC) case. The case dealt with appointments to the higher judiciary. That case however, was closed on November 8, 2017, by a three-judge bench headed by the Chief Justice.

Justice Kurian Joseph

Two months later, the four judges have sought to appeal to the court of public opinion. This implies that the concerns in their letter have not been addressed. However, what was once the discussion of corridor talks and academic discussions has now turned into a full-blown crisis. Implicit in the long letter that the judges have written is the recognition that the personal and political predilections of individual judges often decide the fate of matters. The idea of an unbiased judiciary, shorn of personal bias, has received a body blow to its credibility. The four judges have deliberately (and wisely) refrained from setting out all the details of what they have perceived to have gone wrong in the previous months. They have pointed to "instances where case(s) having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches 'of their preference' without any rationale basis for such assignment".

It is apparent to informed viewers of the system that this refers to matters with political stakes. Reports speculate that the immediate provocation for the press conference was the allocation of the plea seeking an independent inquiry into the sudden death of special CBI judge, B.H. Loya, in December 2014. Judge Loya was presiding over the CBI court in the Sohrabuddin Sheikh murder trial. One of the accused therein is the president of the ruling political party. Whether the speculation is correct or not is not relevant. It is, however, imperative that the question is seen to receive a fair, unbiased and uninfluenced examination at the hands of the judiciary.

 CJI Dipak Misra

An independent judiciary is the cornerstone of a nation that functions on the rule of law. The fight to preserve the independence of courts began in the early 1970s, at the time that Indira Gandhi's cohorts sought a committed judiciary. That fight continued though a series of judicial supersessions including that of Justices Shelat, Hegde, Grover and Khanna, who were perceived by her government as inimical to the political dispensation of the day. The government's paranoia was further attenuated when, in June 1975, Justice Jagmohanlal Sinha of the Allahabad High Court set aside Indira Gandhi's election to the Lok Sabha from the Rae Bareli constituency. Later that month, Mrs Gandhi proclaimed the Emergency. It was in this period, that the ability of the judiciary to act as a brake against despotism was tested and found wanting.

The lifting of the Emergency saw the beginning of a long struggle to ensure that judicial appointments were separated from executive interference. A series of judgments and interpretations of the Constitution resulted in a more collegial system where the senior judges appointed other men of law to succeed them. This system persisted through two decades of minority governments.

The advent of a strong government with an independent majority saw a constitutional amendment to reintroduce a role for the executive in such appointments. That amendment was struck down and beaten back after a struggle from the judiciary - the bar and bench alike. Despite the clear verdict of the NJAC case (where Justice Chelameswar dissented), there have been efforts to subvert the judgment.

The nation should be on the guard against a committed judiciary as well as a complicit judiciary. Worse still is a broken judiciary. Four out of the five seniormost judges have come out to say that all is not well in the way that the current Chief Justice of India is handling the roster and assignment of cases in the Supreme Court. One of them has gone so far as to say that these four judges did not want the judgement of history to be laid against them 20 years later. It is unprecedented for the judges of the court to take their misgivings with the functioning of the court out into the glare of media publicity. It is manifest that justice is not only done but must be seen to be done. It is equally important that the seeker of justice, citizen or state, must not be seen to be hampered by a system weighted against him or facilitated by a system tilted in its favour. The scales of justice must be seen to be held in even hands.

Hegde is a senior advocate at the Supreme Court and tweets @sanjayuvacha; Kishore is an advocate at the SC and tweets @parahoot