SC: January rebellion continues to hang fire

All is not well with the judiciary. It is passing through a serious crisis and if an all-out effort is not made to resolve it soon, not only its credibility, efficacy and integrity are going to be affected, but the very survival of democracy itself will be at stake.

A strong and united judiciary is the sine qua non for a strong and vibrant democracy. Anywhere in the world, a large part of democracy's commitment is fulfilled by the State through the judiciary and the country's premier investigative agencies. If the judiciary and its investigative instrumentalities are not effective, democracy's commitment is perceived as a mere abstraction, leading to a dangerous deficit of public trust in governance.

After the virtual revolt in January by the four senior-most Supreme Court (SC) judges - Justices J. Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph - against the Chief Justice of India (CJI) Dipak Misra, it was hoped that good sense would prevail and they would get together to resolve their internal differences amicably. For all the efforts put in by well-wishers of every hue, including the Supreme Court Bar Association and the Bar Council of India, besides a clutch of retired judges, the fundamental issues that led them to go public are yet to be resolved. Since then CJI Misra and the warring judges too have met on several occasions but failed to sort out their differences, to say the least.

In the meantime, a new roster system came into being and became effective from February 5 with a view to introduce transparency and to institutionalise allocation of cases to various benches of the SC -- one of the main demands of the recalcitrant judges. The list posted on the SC website shows which judge will hear what matter.

The move to put the roster in the public domain is the first acknowledgement by the CJI that something is terribly wrong in our judiciary and concerns go far beyond some hair-raising headlines or the raised eyebrows of experts, legal luminaries, former judges or people at large. The subject-wise allocation of cases is a welcome attempt to bring in a modicum of transparency in the constitution of benches. However, the finalised roster is only about the presiding judges. It doesn't talk about the other judges who will be part of the benches.

The concerns expressed by the foursome pertain to substantive issues of checks and balances to the powers of the CJI in his capacity as master of the roster. Addressing them will require the judiciary to deliberate internally a mechanism to temper such discretionary powers while also responding to the debate on judicial reforms in the public sphere. Still, the rebel judges will not get to hear significant PILs of far-reaching consequences, which the CJI has assigned to his own bench.  

Has the apex court returned to the required judicial tranquility from a state of turmoil? The answer is in the negative, as per the ongoing situation. The CJI unilaterally announced the new roster system without consulting the rebel judges.

True, he is the master of roster, but enforcing it without consulting his other senior colleagues can be problematic again. When appointment of SC and HC judges is a collective function of the collegiums, there is no reason why the allocation of important cases should not be done collectively or at least in consultation with senior judges of the highest court.

Recover credibility

It is understandable that CJI Misra is hurt by the washing of dirty linen in public by the four senior judges as it gave a bad name to the institution. However, ignoring the crucial issues raised by them cannot be the solution to the problem. The judiciary has been facing multiple problems, such as manpower shortages at all levels, a huge backlog of pending cases, unfilled judicial vacancies in higher and lower courts and non-finalisation of Memorandum of Procedure (MoP) for appointing judges to the higher judiciary. As if all this is not worrisome enough, it now faces, perhaps, its most serious self-inflicted crisis, which is harmful to its well-earned reputation for justice and independence.

The CJI is indeed the master of roster; even the four judges have conceded that this is a well-settled practice. However, this power cannot be exercised without due regard to other well-settled conventions, greater objectivity and fairness. As the four judges pointed out at their January 12 press conference, CJI was only the first among equals, nothing more, nothing less. Therefore, his power as master of roster should not be construed as recognition of any superior authority, legal or factual, over his colleagues.

In the matter of determination of the roster, there are well-settled conventions for the guidance of the CJI, be it the strength of the bench, or the composition thereof. Over the years, the Supreme Court has shown a healthy inclination towards course correction. The spirit of reflection and self-criticism should not be confined to jurisprudence alone but extend to the apex court's self-regulation.

The very credibility of the judiciary is at stake. It is high time the CJI and the other judges moved to restore judicial order in the interest of an institution that still enjoys immense public faith. This is important because a fractured or divided apex court has the potential to encourage politicians to interfere in the independence of the judiciary.

At the same time, the government must also get going on the MoP, which has been awaiting its nod for quite sometime, and should not let this episode influence the selection of SC and HC judges. It must also refrain from any action that would further erode the faith of people in the independence and integrity of the judiciary.

(The writer is an advocate at Delhi High Court and Supreme Court)