In Coming Out To The Press, The Judges Have Crossed A Line

The Supreme Court of India has been shrouded in controversy for a while now. But very few saw it collapsing so soon into the mess that it did on 12 January, the Black Friday of the Indian Judiciary.

The legal fraternity was abruptly fed with trickling bits of an alarming incident – four judges of the apex court including the next Chief Justice of India (if convention is anything to go by), had called for a press conference. Amidst initial reactions and speculation, the press conference began, and the judges revealed that they were forced to take this unconventional step because “democracy is in danger”. ‘Why so?’ would be the logical question to follow. Their response left a question mark on their intention, which was initially assumed to be noble. The statements made during the press conference revealed that their primary target was the Honourable Chief Justice of India, Justice Dipak Misra. There are two aspects to the Chief Justice’s conduct that were in question – first, his role as the master of the roster and second, the manner in which he had assigned cases to various judges in the court in such a role.

Let us analyse them in order. The Chief Justice of India, the senior-most judge of the Supreme Court, has conventionally been allotted the role of master of the roster, which means he has the power to decide which judge will adjudicate which case in the Court. This is one of the powers and privileges that the Chief justice of India enjoys over and above what his fellow judges in the Supreme Court enjoy. It is because he performs an administrative role too that his salary is higher than that of his brother judges. This convention is an extension of another convention – the seniority principle.

The judges in the Supreme Court sit in the order of seniority, which automatically implies that the senior-most judge, at any point in time, will be appointed as the Chief Justice. It was only logical to decide that if considerable significance is being attached to the seniority of a judge, then powers will also be distributed accordingly. These principles have, almost always, been respected by the bar and bench alike. Any aberration, as had happened during the Emergency, has been criticised. With these facts in mind, if one reads the letter addressed by these four judges to the Chief Justice, it is difficult to understand what the furore is all about. They call the convention of recognising the Chief Justice as the “master of the roster” a “well-settled principle” and also call him “first amongst equals”. I do not think that the Chief Justice or any person supporting his stance would dispute either of those statements. In fact, that is exactly why he is required to shoulder an administrative duty, which he did to the best of his ability and understanding!

Next, the letter speaks about the manner of distribution of cases and refers to “the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof”. This statement is questionable, as there are no “conventions” dictating the composition of benches who must listen to various matters. There are only rules of the court and Article 145 of the Constitution; the latter says that a minimum of five judges must listen to any matter, deciding a substantial question of law. Beyond this, the composition of benches is, and always has been, at the discretion of the Chief Justice.

By making the allegation that certain cases are put before select benches, these judges have clearly indicated that some judges of the apex court are less able than others in the adjudication of matters. Why stop these judges from listening to only cases of national interest? Are other cases less important in the eyes of the law? If any of the judges are either corrupt or incompetent, they must not be on the bench at all. But that is not the current ask, and I wonder why.

The crux of the allegations levelled is thus not even against the incorrect delivery of judgment. It is about the manner of hearing certain cases. So, not only have these four judges decided that justice will not be done by the judges hearing it, they have also decided in whose favour the judgment must be delivered, for justice to be done, without even hearing the arguments from both sides. Is this the judicious temperament with which hundreds of cases are heard every day – with a predetermined decision in mind?

It is possible that a number of important issues are pending adjudication before one bench as opposed to others. There is nothing in the form of conventions, laws or rules barring the same. For instance, it happened just a year before last and ironically, involving current Chief Justice Misra himself. In 2016, Justice Misra’s bench was listening to Subramanian Swamy versus Union of India (constitutional validity of criminal defamation), Union of India versus Harish Rawat (floor test in Uttarakhand), State of Karnataka versus State of Tamil Nadu (Cauvery water dispute), Common Cause versus Union of India (scope of sedition law) and Shyam Narain Chouksi versus Union of India (the national anthem order). If my understanding of the four judges’ definition of “issues of national interest” is correct, the current list looks formidable enough to have raised their eyebrows. Except, it did not. Even if their proposal of lesser discretion of the Chief Justice in allocating cases of national interest is to be accepted, who is to decide what these “cases of national interest” are? Is that to be left to the discretion of individual judges of the Supreme Court? If yes, why not that of the Chief Justice? These questions remain unanswered.

While questioning the convention of seniority of the Chief Justice in administrative decision-making, these judges have wounded a much more crucial convention – that of keeping away from the press. I daresay, even if these judges had grievances that were graver than the ones they have made, there was no justification for conducting themselves in this manner. While I strongly believe that impeachment proceedings must immediately be initiated against these judges, I will go a step forward and say that even that may not be enough. Contempt proceedings must be initiated against them too, and if the precedent set by the apex court itself is anything to go by, then they must be handed out the punishment of imprisonment.

Section 2(c) of the Contempt of Court Act 1971 defines criminal contempt as “the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

This incident is a textbook definition of criminal contempt, so why must the law, as it stands, not be applied? Do sitting judges of the apex court form a separate class of citizens superior to all else and are hence exempt from the ordinary application of laws? I am not a fan of the law of criminal contempt, but it must be applied equally to all while it stands in the statute book. It is important, at this juncture, to recall the way two judges – one retired Supreme Court judge and one High Court judge – have been treated by this very apex court in the recent past.

Justice Markandey Katju, a retired Supreme Court judge, was dragged to court over a critical comment he made about a judgment delivered by Justice Ranjan Gogoi in the Soumya murder case. Justice Gogoi, who supposedly wanted to make an example of him, broke all conventions by calling him to the court and insulting him, before issuing an order of contempt. Justice Katju was forced to apologise thereafter so that no coercive action was taken against him.

In another forgettable episode, a sitting judge of the Calcutta High Court, Justice C S Karnan, was held to be guilty of contempt by the apex court and sentenced to six months’ imprisonment. It was said that his letters addressed to various judges made scurrilous attacks on them and had caused damage to institutional integrity. It must be noted that most of these allegations were those of corruption and favouritism, ironically similar to the present case. During the hearing of the contempt case against Justice Karnan, the learned Attorney-General K K Venugopal had suggested to the court that they wait for Justice Karnan to retire to proceed against him. To this, the then Chief Justice Justice Khehar had retorted that “in contempt, we do not distinguish… there is no colour… sitting or non-sitting... if he is sitting, he is wrong”.

If the current set of judges is not treated in the same manner, even though their action has caused greater damage to the institution, it will be grave injustice to Justice Katju and, more importantly, Justice Karnan, who was recently released from jail on completing his full term.

What is disturbing is that while Justice Karnan’s imprisonment appeared to be the obvious step to take then, somehow the imprisonment of the four current judges seems inconceivable to the same people now. Saying that imprisoning them will lead to a constitutional crisis is unimpressive. Apprehensions that more judges who are currently silent might share the feelings of these four judges is an even worse argument to make. What is essentially being argued is that if the judges of the apex court unite in doing something illegal, then they can hold the law to ransom.

The current situation is already nothing short of a constitutional crisis. The Constitution has ample provisions to ensure that the Supreme Court suffers no vacuum due to the tough steps taken. Articles 127 and 128 of the Constitution empower the Chief Justice of India to appoint ad hoc judges and retired judges respectively, to sit and act as judges of the Supreme Court should it be required. These provisions should be invoked to ensure the smooth running of the justice delivery process.

Hundreds of cases must have been listed before the benches of these judges on the day they chose to stage this spectacle, all of which went unheard. There are people who put the bare little that they possess at stake to get one hearing at the ultimate altar of justice, the Supreme Court. Every day’s delay and every single adjournment causes litigants financial and emotional anguish. The insensitivity displayed towards the plight of the common man and woman is unpardonable. Chief Justice Misra, on the other hand, displayed an immense amount of stature by conducting his court in the usual manner despite the events that unfolded. A judge’s primary responsibility lies in putting sensationalism on the back burner and delivering judgments in the non-newsworthy disputes between ordinary citizens.

The cause list (list of cases before various benches of the Supreme Court) for Monday is out on the Supreme Court website. The four judges in question have neither resigned nor have they been removed. After all, that was splashed on national television, they will hold court as usual, as if nothing ever happened. Why is the litigant forced to show faith in these four judges even after this display of a lack of judicious temperament? If I were a litigant with my case listed before any of them, I would want to withdraw my case with a refund of my litigation expenses as penalty, with interest.