A wounded judiciary

A wounded judiciary

The current storm in the Supreme Court traces its roots back to a series of similar upheavals by judicial magistrates. The dent in the image of the judiciary cannot be undone. It would be fair to say that following the initial storm, things are under control but not yet resolved.

The four honourable judges, Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph, contended that all important cases were being given to junior judges and the senior judges were being ignored. However, it must be noted that the Chief Justice of India has complete powers to allocate the cases to any bench. The chief justice is first among the equals on the judicial front, but the supreme authority on the administrative front. This can be traced back to the Supreme Court ruling in State of Rajasthan vs Prakash Chand & Ors, 1997.

That ruling said, "The judges can hear only those matters which have been allotted to them by the chief justice or under his directions. It, therefore, follows that the judges do not have any general jurisdiction over all the cases…only to such cases as are allotted to them by the chief justice or under his directions." The Supreme Court ruled that this applies to the apex court as well.

It is surprising that such contentions come from judges who themselves have held the office of chief justice of various high courts. Justice Chelameswar was chief justice of Kerala and Gauhati High Courts; Justice Joseph of Himachal Pradesh HC; Justice Gogoi of the Punjab and Haryana High Court; and Justice Lokur was chief justice of Andhra Pradesh HC.

What needs to be questioned is the judges' decision to take the drastic step of going to the press with their concerns despite knowing the repercussions. Did they exhaust all other avenues to resolve their issues before doing so? They could have requested the CJI to call a full-court meeting to put forth their concerns; if that did not work, they could have approached the President, who is the appointing authority and is apolitical.

If that too failed, they could have resigned from their positions as Justice K S Hegde and Justice H R Khanna had resigned as a matter of principle when they were superseded for appointment as Chief Justice of India in 1973. Recently, Justice Jayant Patel resigned as a judge of the Karnataka High Court when he was transferred to the Allahabad High Court, instead of being named chief justice of Karnataka.

The genesis of a divided Supreme Court can be traced back to 1993 and the Supreme Court Advocates-on-Record case and Justice M M Punchhi's dissenting opinion. The bench overruled the S P Gupta case and the practice of judges appointing judges began. When an agitated H R Bharadwaj, the then law minister, rushed to the then prime minister P V Narasimha Rao, the latter calmly said, "Why are you so agitated? They cannot handle it. It will come back to us. Wait for some time." This episode is being replayed today. In fact, it is fortunate that the other Supreme Court judges have not so far called a press conference in support of the CJI.

The four judges have violated the oath of office and, knowingly or unknowingly, given a political colour to their in-house differences. The curiosity rises with the fact that Justice Chelameswar met CPI leader and Rajya Sabha MP D Raja in these circumstances. If public trust in the judiciary is lost, then where is the question of an independent judiciary. The judiciary needs to work towards restoring public trust. We have to revive faith in our democracy.

Judicial turbulence

Democracy is alive and functioning in our country. High courts, district courts and lower courts spread across the country are functioning normally and discharging their duties. The armed forces are working. Parliament and state legislatures are functioning. The Executive is accountable to Parliament. This is the message that needs to go out to the world today. Where was the need for the judges to state that democracy had collapsed just because a few cases were not allotted to them?

Judicial turbulence is not new. In 2004, 25 judges of the Punjab and Haryana High Court went on mass leave as a mark of protest against the then chief justice, Justice Roy. However, the torchbearers of the protest Justice G S Singhvi (author of the Supreme Court 2G judgement in 2012), Justice V K Bali and Justice H S Bedi were summoned by the then Chief Justice of India V N Khare and were 'severely admonished'. All the judges reported for work the next day after the intervention of the Supreme Court. But today, the Supreme Court is itself involved in a similar imbroglio.

The seed of the entire controversy is in the practice of judges appointing judges. The Supreme Court did not accept a proposal to set up a National Judicial Commission and struck down the attempt to give the Executive a hand in the appointment of judges. Unless the issue of appointment of judges is set right, the problems of the judiciary will continue to surface in one way or the other.

A wound has now been inflicted on the judiciary. The concern now is how to stop the bleeding. The only effective way of healing the wound is to revive trust in the judiciary. And that can be done only by the appointment of judges who display the qualities of statesmanship, foresight and rectitude and duly perform their duties.

(The writer is a retired IAS officer and former chairman, Karnataka Appellate Tribunal)

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