Is India’s apex court still the last bastion of justice?

“Nemo judex in sua causa” (no man can be a judge in his own case) is a legal maxim that dates all the way back to Roman law. These words are attributed to Publius Syrus, an ex-slave (Syrian by birth) and a wit of sorts. In recent years India’s higher judiciary had to be reminded of this adage, not once but twice.

India’s Supreme Court, it is said, is Supreme, but not infallible. But can the public hold such a view if the court’s actions are premeditated and deliberate? If the rule of law breaks down and the constitutional checks and balances are disabled then the highest court in land needs to be held to account.

The trigger for this presser was the so called ‘medical colleges scam’ in which the CJI was an interested party and instead of recusing himself from the benches hearing cases related to this scam, he invoked his right as master of roster to be part of the proceedings. Unsurprisingly the petitions alleging the scam were dismissed in due course

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For there is a clear and present danger that an ambitious Chief Justice of India (CJI) and an all -powerful Prime Minister can indeed collude and subvert the constitution. And much of this collusion becomes possible when the CJI is bent on wilfully ignoring Publius Syrus’s dictum.

Well-settled conventions

Master of roster refers to the privilege of the CJI to constitute benches to hear cases. This is one of the well-settled conventions (this privilege was never written into the constitution) and is important for orderly transaction of business. Most democracies follow this practice and India is no exception.

But in India this convention has become controversial. The reasons are multifold, the higher judiciary in India faces a severe backlog of cases, and the country has a litigious culture. This necessitates the constitution of different benches (vastly larger than that found elsewhere) to reduce the caseload and obliges the court to farm out pending cases to its various benches.

So far so good, but here is the rub, though the CJI is but the ‘first among equals’ the privilege enjoyed by him as master of roster provides him with enormous power to assign cases to the different benches. And this authority takes on an ominous turn when ‘bench hunting’ becomes rampant.

Bench hunting is the practice of filing cases before a particular judge or bench to ensure a favourable order. This corrupt practice prevalent in the lower courts has wound its way to the apex court and there is the very real fear that rule of law itself is under siege.

The most dramatic evidence that this snake oil had percolated to the very top of the pyramid became evident when four of the senior-most judges of the Supreme Court held an extraordinary press conference on January 12th 2018 which in effect was a revolt against the then sitting CJI, Dipak Misra.

Established precedents

The four judges, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, alleged that the CJI was not following established precedents in allocation of cases among the judges.

The trigger for this presser was the so called ‘medical colleges scam’ in which the CJI was an interested party and instead of recusing himself from the benches hearing cases related to this scam, he invoked his right as master of roster to be part of the proceedings. Unsurprisingly the petitions alleging the scam were dismissed in due course.

Consequent to his decision to disregard Publius Syrus’s dictum the perception was that he was now malleable to political influence and his judgements thereafter were seen as biased and favouring the government. This was particularly so in the explosive case against the current Home Minister Amit Shah who was then an accused in the infamous fake encounter case.

On his retirement, the next CJI was Ranjan Gogoi (one the four mutineers) and much was expected of him. The reputation he had built up on account of him having taken a stand against the Dipak Misra was rock solid and his initial pronouncements seemed to add to his aura.

Alas! His actions were even more questionable than that of his predecessor. Scandalously, he had no compunction in presiding over the matter concerning allegations of sexual misconduct by a Supreme Court staffer against him. The case was summarily dismissed and Publius Syrus was yet again forgotten.

And thereafter his handling of the Rafale petitions which had the potential of embarrassing the Centre over the controversial fighter jet deal — one of the most unconvincing decisions of his stint-made him look even more malleable than his predecessor. S

hockingly before this judgement he had Prime Minister Narendra Modi invited to a dinner hosted by him for international judges during the pendency of the case and held a one-on-one meeting with Modi despite Modi being personally named as a respondent in one of the pleas.

What followed thereafter was even more blatant, on his retirement, Gogoi was nominated by the government as a member of the Upper House of Parliament.

Indeed, the last bastion of justice has fallen!

— Ravi Menon is a Dubai-based writer and thinker, working on a series of essays on India and on a public service initiative called India Talks.