The quandary that the Supreme Court as an institution has led itself into is not one that sprang up over the last two weeks or so. It is a problem that goes to the very root of our constitutional structure. The current crisis may eventually blow over, but the deep seated institutional lacunae that exists in the highest court of the land cannot be resolved through a tea.
The conflict that has arisen between the 4 senior judges of the court and the Chief Justice seems to be based on two grounds:
The allocation of cases by the Chief Justice of India as the Master of the Rolls.
The non-approval of the Memorandum of Procedure by the Union Government.
Justice Kurien Joseph and Justice Madun Lokur had earlier written a letter of protest against the Chief Justice’s recommendation that the reasons for rejection of candidates for Judicial posts by the collegium be made public. The Judges felt that such a move would be a violation of “human rights” and the principles of natural justice since the rejected candidates were not even afforded a hearing before the reasons for the rejection were made public. This sort of convoluted logic eludes me, and I will get back to that issue later.
Let us deal with the issue of the Memorandum of Procedure (MoP) first – the MoP is the agreement between the Supreme Court and the Union Government regarding the appointment of Judges to the Supreme Court. The Union Government has so far not responded to the comments made by the Supreme Court on the draft MoP. The 4 senior Judges are questioning the inaction of the CJI on this issue. The judges point out that the court in RP Luthra v. Union of India, started to deal with an issue judicially that they had so far dealt administratively. The 4 Judges want the silence of the Government on the MoP be considered as acceptance of the same. It is quite clear that such a unilateral move by the Judiciary could possibly create a constitutional crisis.
Keep in mind that the Supreme Court had struck down the National Judicial Appointments Commission (NJAC) on the ground that it violated the basic structure of the Constitution back in 2015. The issue of Judicial Appointments in the country has long been a source of conflict between the Executive and Judicial Branches. The Supreme court has by the way of the SC Advocates on Record Association v. Union of India, 1993 and the IN RE: Special Reference No.1 of 1998, established the predominance of the collegium, composed of the 5 senior most judges of the Supreme court , with regards to the appointment of Judges in constitutional courts. There has been no appointment system so foul in any democratic system in history, in my humble opinion. The Judiciary has conducted a naked power grab of the instruments of the state by the way of these judgements and more. There is more than enough evidence for one to argue that the Republic has become a Kritarchy. This is the real problem that we face. Not a spat between the Judges and the CJI. The conflict is a spectacle to the media and civil society, undoubtedly, but it conceals the rot that has set in the democratic system due to the appropriation of power by the Supreme Court.
It is understandable then, why I felt bemused when Justice Chelameswar stated that the Supreme Court and thus Democracy itself is in danger. The Supreme Court has violated the very sacrament that it claims to protect, multiple times. Democracy has been in danger since the day the Judiciary decided that it need not no longer conform to the constitution, and that it could utilize weak executive power to appropriate power for itself.
The honourable Justices who objected to increased transparency in the decisions made by the Collegium based their grounds on the violation of the principles of natural justice. The Judges are indeed right. The collegium is passing judgement on persons in public without hearing them. But is it not foul of natural justice that the collegium exist at all? A body that appoints its own successors, with no accountability or transparency whatsoever. It is therefore almost baffling that the Judges cry foul over the smallest amount of transparency that is being afforded on the grounds of “natural justice”, when they themselves have given themselves the power to take arbitrary, unaccountable and opaque decisions. The solution lies in the implementation of the NJAC, and nothing else would do, certainly not a half-baked MoP.
Keeping in mind all this, the ability of the Chief Justice as Master of Rolls to decide the outcome of any case is virtually unlimited. His role as Master of Rolls acquires prominence because he can constitute, disband and allocate cases to benches of his discretion. Since the Indian Supreme Court, sits in benches of 2, 3 or constitutional benches of 5, there lies a scope for “bench-shopping” by which an aspiring litigant can get a hearing with a favourable judge. This is of course, exceedingly problematic. Bear in mind however, some allegations by the 4 judges on the issue of allocation of sensitive cases are false. But the system has obvious deficiencies, for example when the current CJI virtually heard a case against himself which obviously played a role in the current drama. The solution to the current crisis with regards to this issue is to renew the doctrine that existed prior to the 5 judge order holding the CJI as the absolute head of the roster. The CJI should continue as the Master of rolls, but in the extraordinary situation that the Chief Justice has a conflict of interest, the role should be taken over by the senior most Justice of the Supreme Court who does not have a conflict of interest. But the solution to the question of judicial misconduct lies in the adoption of the Judicial Accountability Bill, as Jaggi rightly points out.
The Judicial Accountability Bill will however not solve the problem of bench shopping by litigants or the possibility of “bench stuffing” by the CJI. The solution to this problem lies in the very nature of the Supreme Court. The original Constitution envisioned one Chief Justice and seven other judges. The total number has since then been expanded to 25. This, as earlier stated, means that the court does not sit as one single body, but in benches. This leads to certain conflicts between and among the Judges as well as litigants. It is inherently a divisive system, prone to a variety of biases. But considering the litigious nature of the citizens as well as the burden of the Legal system, one would feel that it is necessary that such a system by adopted by the Court to dispose of cases faster. Many would rightly demand that more judges be appointed to ease the burden of the court, and rightly so. There is nothing in wrong in such a solution, and it certainly exists a legitimate one in the realm of possibilities
I am however inclined to suggest a more radical option. The Supreme Court of India should only hear questions of constitutional law, and nothing more. The Court should be organized in a similar fashion to that of the United States, sans the blatant politicking, with 9 Judges and a Chief Justice who sit as a single bench. A National Court of Appeals with branches at Kolkata, Bombay and Chennai should be formulated for the disposal of Civil, Criminal, Labour and Revenue matters. This will greatly ease the burden on the Supreme Court. Such a reform will also be a solution to problem of bench stuffing and shopping.
The current impasse is no doubt consequential, and may shape the court for years to come. We should not however lose track of the court’s history and the extraordinary power that it exercises today. The reforms of the Constitutional courts is a topic that needs an active discussion in our discourse at the earliest.
Post-Sript
Q:What should the Judges have done, in your opinion?
A: Considering that the order of the CJI violated the basic premise of natural law, and it was an extraordinary situation it should have merited discussion in the Parliament. The Judges ought to have approached the President of India, who as the head of state, is ultimately the person responsible for the oversight of the Supreme Court. The method adopted by the 4 judges was crude, one that demeans the integrity of the institution, and of the Judges. The press conference by the Judges was a public spectacle, one that was meant to shame the CJI and in effect all those persons that were aligned against them. Obvious ego issues between the Chelameshwar and CJI had a role to play in it.
Q: You are saying they should have been graceful?
A: Yes, I am saying that the Judges should have handled themselves in a manner fit for their position. The press conference felt like something an attention hogging teenager would do, not matured justices of the Supreme Court.