Supreme Court itself has held that certain features of the Constitution can’t be amended by Parliament; it should be the same when it comes to its own functioning.
The Supreme Court’s judgment on 14 November in the case of Kamini Jaiswal v Union of India, raises a lot of questions, and at multiple levels.
The foremost issue is Justice A.M. Khanwilkar being part of this bench, because he was also part of the bench, which heard the medical college case that lies at the heart of the current controversy. The judgment in this case is unanimous, and Justice Khanwilkar himself seems to have dealt with the allegation against him – he effectively gave a clean chit to himself.
This may not necessarily be legally wrong, but it certainly raises some issues of impropriety. The Supreme Court has long been known to have firmly established the practice of utmost propriety and integrity. Therefore, perhaps, it is not wrong to suggest that when such an issue had already been raised, Justice Khanwilkar should have ideally recused himself from the bench, no matter how baseless the allegations are. After all, any other judge could have also judged the issue on its merits, and the “baseless allegations” would have been termed baseless by another judge and not himself.
One of the principles of natural justice is ‘Nemo in propria causa judex, esse debet’ (No one should be made a judge in his own case). This has been often upheld and applied by the Supreme Court in a multitude of cases, but given a pass in this instance.
As part of the judgment, it has also now been written in law that no criminal proceeding against a judge in the form of an FIR can now be registered without the permission of the Chief Justice of India. If such a case relates to the CJI, then the permission of the President of India will be required.
Ironically, this was stated while also mentioning that like everyone else, judges are not above the law.
Written law vs customary rules
As a result of following the common law system, a lot of things in the governance structure of India are administered by customary rules and practices, and a written law is not always required. The CJI being ‘master of the roster’ was also one such practice. But, it was also again explicitly held in the judgment. As a saving grace, the petitioners and lawyers were not booked for contempt, but nevertheless, their arguments were termed as “contemptuous”.
A strong set of customary practices and rules are usually reflective of the strong values underlying the governance machinery of the state. In the United Kingdom, nothing is written even in the form of a Constitution; the state’s constitutional machinery runs solely on customs.
A written law is not necessarily always a good thing. This is because a customary law has its origins in a very organic process which develops out of practices, and which have been in vogue for a very long time. Hence, a customary rule evolves mostly through set patterns of human interaction. A written law on the other hand, has an imposing character, and establishes itself in a top-down manner.
Customary rules, by their inherent nature of being not written, are almost impossible to amend. Even giving a new interpretation to them is very difficult. This is precisely why certain rules which are very sacrosanct in preserving the value system of an important institution like the Supreme Court, being enforced as customs, becomes imperative, because they shouldn’t be amenable to any amendment.
The Supreme Court has itself held that certain features of our Constitution are part of its basic structure, and can’t be amended by Parliament. Perhaps it may be suggested that there are certain other features which govern the workings of our governmental institutions, which should not be changeable even by the Supreme Court, especially when they relate to the functioning of the court itself.
Heart-wrenching crisis
It is also an important moment to reflect at large upon the functioning of the judiciary in India. The institution probably has the biggest colonial hangover – the concept of vacations, for instance, originated in the practice of British judges going to cooler places during summers, but is still practiced in the higher judiciary. It is the only organ of the government which shuts itself down for vacations during both summer and winter.
In spite of all the shortcomings, the Supreme Court of India has long held the position of being the better organ of the government in India. The trust of Indian people in the institution has been unwavering, even when it has erred in dark times like the Emergency. Such a position was also earned by the court by being the champion of both individual liberty and social issues at the same time. The court has, on most occasions, adopted the most modern and progressive view on the majority of questions of law it has dealt with.
It is indeed a little heart wrenching to see the court go through this crisis, especially when it was totally avoidable. We can just hope that propriety again becomes a high priority for the justices.
The author is a research fellow with the Department of Humanities and Social Sciences, IIT, Mumbai. He is a lawyer by education, and has formerly worked for India Foundation.
The article throws light to the crisis in top court now. It is horrifying to imagine that our Supreme Court is itself arrogating power to itself which in political terminology means “authoritarianism” in spirit. Even during emergency era In 1975 the federal ssystem i.e.High Courts stood as palladium of justice but for the Superior Court when it declared by 4: 1 majority that no fundamental rights exists.Then Justice HR Khanna was dissenting judge who was hailed by New York Times even for Standing up high.
There appears to be a tussle to assert authority and incumbant CJI requires absolute power. It may not be reassuring at all when there are seeds of disunity amongst the judges . Justice Chelemeswars judgement in momentus case rejecting Judges appointment by Collegium and his outspokenness seem to have earned wrra