Courts are a Law unto Themselves


The Indian judiciary has come under unprecedented scrutiny for its secretive and capricious ways, says Arlene Mathew

January 12th2018 marks a milestone in the history of the Indian judiciary. Four of the senior-most judges of the Supreme Court, namely Justices Jasti Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur, decided to go public with their concerns about the functioning of the apex court and the leadership of the Chief Justice of India (CJI),Dipak Misra.

This was an unprecedented act for a judiciary that’s respected for its transparency, independence, and more important, the ability to regulate itself. As Justice AP Shah observed in theBG Verghese Memorial Lecturehe delivered recently, the judiciary is one of the most powerful institutions in the country because it commands respect for its ability to maintain discipline and order in the conduct of its affairs.

In a press conference held in New Delhi, the judges released a letter they had sent to theCJI explaining that while he has the power to assign cases to judgesasMaster of the Roster,he was no more than primus inter pares or first among equals. Convention dictated he take his brother judges into confidence regarding the allocation of work and the assignment of cases. The letter alleged that the CJI had misused his powers in this regard, refused to discuss the objections raised and had thus lost the confidence of his peers.

The conference sent shockwaves through the establishment. Justice RS Sodhi, a Delhi High Court judge, responded to the news of the conference, saying that all the four judges deserve to be impeached. Former Attorney General Soli Sorabjee shared his distress over the issue through social media. “Confidence of public is important for efficient working of the judiciary,” he tweeted. “It was not a good move; I’m not in favor of this. Repercussions will not be good.”

However, many supported them, calling the judges men of integrity and adding that they wouldn’t have taken such a drastic measure had there not been something seriously wrong in the working of the court. “The lack of an internal mechanism to cover such situations was unavailable,” speculated Aditya Sondhi, a senior advocate practicing before the High Court of Karnataka and Supreme Court of India. “And this, perhaps, drove the need to officially let the world know how bad things had gotten, which is actually a lot healthier than off-the record murmurings.”

The Campaign for Judicial Accountability & Judicial Reforms (CJAR) in a public statement, released soon after the press conference, listed recent examples where the assignments of cases were made without adherence to convention. This included the constitutional validity of Aadhaar with respect to the right to privacy, which was slated to be heard by a five-judge constitution bench of the Supreme Court consisting of only junior judges, led by CJI Misra.

Another example cited by the CJAR was the Medical College bribery case, in which a five-judge bench led by CJI Dipak Misra overturned an earlier order of a two-judge bench on the matter. The third instance where the CJAR indicated a flouting of rules was the challenge to the appointment of Rakesh Asthana as a special director of the Central Bureau of Investigation. This challenge was dismissed by the two-judge bench that heard it.

The four judges’ collective decisionto speak out appears to have been taken as a last resort. The fact that the CJI didn’t deem it necessary to reply to such a serious charge from his closest colleagues on the bench is indicative of an internal breakdown in the system. If disagreements at the highest level of the judiciary cannot be aired and resolved within its ranks, the possibility of free exchange of ideas and constructive criticismlower down the judicial system would seemeven less likely.

Alok Prasanna Kumar, an advocate based in Bengaluru, commented that it exposed the rot within the judiciary. “The true underlying cause of this situation lies in the fact that the Supreme Court has long been in denial about the fundamental change in the nature of the institution,” he explained. “It is unlikely that any of the remaining problems are going to be dealt with if the underlying reasons for the present crisis are not going to be acknowledged.”

Expanding upon this, he said, “This is not just a matter to be resolved between the CJI and the four senior judges. It requires the Supreme Court to convene as a full court and put in place solid institutional mechanisms to constrain the CJI’s powers. It also requires the Supreme Court to take the chief justices of the High Courts into confidence and guide them to follow their lead on this matter.”

Under the Constitution, the only remedy available to anybody outside the judicial system to remove a judge is to seek his impeachment. A judge of the Supreme Court can be impeached on the grounds of proven misbehavior. But, no judge of the Supreme Court has ever been impeached in India. Even cases filed against judges have often been met with criticism from the judiciary.

But short of removal, there has long been felt the need to properly police the judiciary. Contrary to what the judiciary recommends for judges, no institution can be allowed to be a law unto itself. Senior advocate Prashanth Bhushan is of the opinion thatthe judiciary resists accountability and transparency. There have been instances where the judiciary has taken contempt of court action against people who have criticized it. Contempt of court is in fact a commonly used weapon used by the judiciary to protect itself against any criticism.

The late SP Sathe, former president of the Maharashtra People’s Union for Civil Liberties, had often spoken strongly about the need to hold the judiciary accountable for its actions. In a commentary on the Arundhati Roy case, regarding the freedom of a citizen to criticize the court, he wrote, “If the courts adopt an attitude of being a holy cow, they will not know how they are evaluated by the people. Arundhati Roy said that if the courts became immune from public criticism, they could usher into a dictatorship. A judicial dictatorship is as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.”

There should also be a stronger reach for the Right to Information (RTI) Act across the judiciary.In the past, the judiciary has appeared extremely reluctant to submit itself to the RTI Act. The Wire lists instances in which RTI faced resistance from the judiciary. These RTI queries included ones seeking information about the appointment of judges and about declaration of assets filed by the judges of Supreme Courtandthe High Courts.

The Journal of Legal Studies and Researchspeaks of ways in which the judiciary in India could be made more accountable. First, they have suggested the formation of a National Judicial Commission, which could look into the appointment as well as the impeachment of judges. Several Law Commission of Indiareports have also made a similar suggestion.

Second, the Judicial Accountability Bill, which was introduced in the Lok Sabha in 2010, was also cited as a solution. This bill would include a declaration of judges’ assets, investigation into cases against judges and making these investigations available to the public. The third solution that they have suggested is to have the judiciary exercise restraint, to ensure that they do not act like either the administrators or executives. Finally, the modifying the hearing of contempt of court petitions could also a way to hold the courts accountable – with contempt cases being heard by independent commissions, not by the court itself.

“As the four senior judges reminded us, we need to probe beyond what is immediately evident to obtain a fuller sense of the health of our constitutional order,” AK Thiruvengadam, professor of law at the School of Policy and Governance, Azim Premji University, writes in Frontline magazine. “That order will remain stable if there is a balance of power between different constitutional institutions, with no single institution gaining a monopoly over political power and authority for an extended period of time.”

Similarly, he might have added, our institutions would become stronger and more credible if they subjected themselves to public scrutiny.

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