On January 12, 2018, all hell broke loose at India’s Supreme Court. Four of the senior-most judges rushed out of court and held a pres conference to revolt against the Chief Justice of India (CJI) — Dipak Misra.
Since then, the mutiny has gathered momentum to further sully the reputation of the court, one of the few pillars of the Indian state that has strived to remain above partisan politics. If that infamous rebellion was a first in the history of the apex court, then the recent attempt by the Congress part-led Opposition to impeach a sitting CJI, is its nadir.
India, is in the midst of a full-blown judicial crisis and the pessimist would say democracy is under peril. Indeed much of the recent happenings could have been avoided, if India had a CJI who believed in the art of recusal and claimed the moral high ground. By letting his peers sit on judgement of his conduct he could have done much to enhance his own prestige and of that of the court itself. Instead, the optics of a CJI who wants to be a judge of his own conduct and presiding over a bench hand-picked by him does him no good.
Many legal luminaries have weighed in on a host of issues ranging from the CJI’s impeachment, the Judge Loya case, the Medical admission scam case, to the government’s refusal to accept the Collegium’s recommendations for elevating judges to the Supreme Court. The court is in a deep crisis and the Republic is facing an unprecedented trial by fire, more dangerous than what it had to endure during the dark days of the ‘Emergency’ era; when Indira Gandhi irreparably dented the independence and reputation of the court. The aberrations of the Emergency ruined the court’s standing in the public eye, but by the late 1980s, successive CJI’s restored much of its early standing. Justice H.R. Khanna stands out as an exemplar, the best CJI that India never had and he was largely responsible for the court regaining its glory. Unfortunately, that lustre, has gradually faded away.
TV debates were focusing on the politics of impeachment, instead of holding informed debates on matters of legal probity and jurisprudence. This, therefore, is an attempt to step away from the sensational stories and instead focus on two key points: The Collegium system of selecting judges and the function of master of the roster. Indeed these two go to the very heart of this contentious and toxic scrimmage that we are seeing in the public space — the Justice Kurian case being the thin end of a wedge, a tussle between the executive and the judiciary.
n The Collegium System and Master of Roster: The Collegium system was put in place after much back and forth and is a creation of the so-called ‘Three Judges Cases’ [Over the course of the three cases, the court evolved the principle of judicial independence to mean that no branch of the state — neither the legislature nor the executive — would have the final say in the appointment of judges]. In 2014-2015, the Collegium system was sought to be replaced by the National Judicial Appointments Commission (NJAC), but the Supreme Court turned it down and so for good or bad, the Collegium system has been the default position. Under this system, a group of four senior-most judges of the Supreme Court, and presided by the CJI, appoints new judges and the laid out procedure is that once the recommendations are made the government of the day has to accept the names selected by this panel. The Justice Kurian case is the first move by the executive to claw back some control in judicial appointments. So it is with much relief that one hears the Collegium has closed ranks and Justice Kurian’s name is being again forwarded to the government and this time around they have to accept it.
Charges of bench-fixing
The Master of Roster is primarily an administrative function and it involves selecting the benches to hear the cases that come up to the court from time to time. Though benign, it has — over time — become potent as charges of bench-fixing have become rampant and consequently the Master of Roster takes on an altogether new dimension. Undoubtedly, the CJI has the sole authority in the selection of benches, but does that mean he can arbitrarily exercise this right? Does he enjoy unbridled power with no checks and balances?
Surely, in a democracy, no position, even if it be a constitutional high office, can enjoy absolute rights. The Magna Carta put paid to divine rights way back in 1215 and it is an irony that in the world’s largest democracy, the CJI should think he can arrogate to himself such extraordinary powers. How can he become an arbiter to a dispute to which he himself is a party? He seems to think that the rights conferred upon him by virtue of being the master of the roster are inviolable, which can brook no checks and balances.
Much as the current CJI is being vilified, it would be unfair to singularly target him for all the ills of the judiciary. The rot set in some time ago. The mission creep of executive overreach, bench-fixing and corruption have been with us for a while. In this context, two distinguished names require mention for they provide us with an inside view of India’s legal system. Arun Shourie’s book Anita gets Bail makes for grim reading.
Next, delivering the B.G. Verghese Memorial Lecture, former chief justice of the Delhi High Court, Justice A.P. Shah, raised the question: “If being the ‘master of the roster’ meant that the Chief Justice of India, Dipak Misra, remained unaccountable?” He then observed: “It was curious that four out of top five judges were kept out of constitutional matters ... and that the role played by the CJI as master of the roster should be a more consultative process ...” He concluded: “The present chief justice’s actions may have been exercised in individual capacity, but are indicative of a deeper malaise affecting the Indian judiciary.”
Question is, what lies ahead? The current CJI retires shortly and the next in line is Justice Ranjan Gogoi, who was one of the four judges who was at the press conference in January 12, 2018. And for Justice Gogoi to be eligible, current CJI Misra has to recommend him. And under ‘the third Judges case, particularly the last of the three cases’ it is mandatory for him to recommend the senior-most judge of the Supreme Court for the post.
Yet will he?
In the case of Justice Kurian, the Collegium stood firm and that the CJI has backed his brother judges augurs well for the future. This optimism, however, needs to be laced with this Shourie quote: “Second-rate persons select third-rate persons. You do this for 30 years and you will reach where we are now.”
— With additional inputs from K. Kannan, retired Commandant, Airforce Administrative College, Coimbatore, and Nihaad Alexander Dewan, student at Symbiosis Law School, Pune.
Ravi Menon is a Dubai-based writer, working on a series of essays on India and on a public service initiative called India Talks.