The revolt by four Supreme Court judges just made it easier for the Modi govt to step in

Supreme Court judge Chelameswar, Gogoi, Lokur and Joseph during a press conference
Supreme Court judge Chelameswar, Gogoi, Lokur and Joseph during a press conference | PTI

As one controversy after another has shown, there is no longer much credibility for the judiciary to lose.

India is now in the midst of a full-blown constitutional crisis. The press conference by four senior judges of the Supreme Court is an alarming event. It is hard to imagine a moment since the Emergency when the Court’s institutional position was in such serious question.

The catalyst for the current episode is the allocation of cases by the Chief Justice. The Supreme Court does not sit en banc. As a result, it rests on institutional norms to ensure that justice does not depend on the courtroom where one’s case manages to appear. These norms, four senior judges have now alleged, have been jettisoned by the current Chief Justice. Practices that ensure fairness in justice-delivery have, it is suggested, all but broken down.

Some will claim that the press conference has damaged the Supreme Court’s institutional credibility. This claim confuses cause with effect. The press conference is simply the consequence of a crisis that has slowly seeped into the judiciary and, as one controversy after another has shown, there is no longer much credibility to lose. As in the case of the Emergency era, the problems are deeper than one mere incident – the crisis exists at both the level of legal doctrine and at the level of administrative governance.

At the level of legal doctrine, the past few years have witnessed the judiciary’s position being undermined in three ways. First, it has openly evaded contentious legal matters, from demonetisation to Aadhaar, such that facts have often made the legal challenge infructuous. Judicial avoidance has become the new mode of judicial review. On questions where the stake has been greatest, the Supreme Court’s decision has been to do nothing.

Second, its record on civil liberties has grown from bad to worse. Free speech is the starkest instance of this. Judgments such as those striking down Section 66A of the Information Technology Act are aberrations. Speech and expression have rarely been defended on principle, and a stunning practice of prohibiting the reporting of judicial matters is on the rise.

Third, the Supreme Court has been loudest in cases where it should, quite simply, say nothing, ranging from red lights on official cars to the playing of the national anthem in cinema halls. The Supreme Court’s recent reversal of the national anthem order is, of course, correct on the merits but it only shows how trivially the court regards the enterprise of judicial decision-making.

The three-fold undermining of legal doctrine is no small matter—it is an undermining of the rule of law. But it has come alongside the judiciary’s administrative inability to manage its functioning. Questions of integrity and propriety now routinely surface, without any sense that they are appropriately handled and managed. One need not even begin to say anything about other matters of serious legal reform, from pendency to judicial training.

The letter drafted by the judges is remarkable for what it does not say. One only needs to read it once to grasp the extent to which the institution has collapsed from within. That matters reached such a level of desperation that a press conference was called by four senior judges should make every constitutional functionary take notice, especially given the broad respect that the judges in question seem to enjoy.

The judiciary’s rise in the post-Emergency era was created around a narrative of comparative institutional legitimacy. In a world where public institutions fell victim to a host of ills, the judiciary sold itself as invested in the higher ideals of social justice and good governance. That story has now been shattered.

The Chief Justice’s constitution of benches has invited worry on more than one occasion, most notably in a corruption case involving a medical college, where basic norms relating to judicial recusal and conflict of interest appear to have been ignored. But the practice of bench allocation itself is only symptomatic not merely of the extraordinary power that Chief Justices have come to wield, but also of a deeper institutional failure to self-regulate. One cannot fully know how much of an impact such a press conference might have. The Chief Justice’s response will be crucial but, at the level of public credibility, one cannot help wonder whether the game is already over.

The government, for its part, has decided to say little about the current episode. The restraint that it has shown is good constitutional practice. It is also strategically wise. The failure of internal accountability within the judiciary will strengthen the case for external accountability, which will come at the cost of some degree of judicial independence. With this present incident, it will be much easier for the government to make the case for greater executive management of the judiciary. To make that possible, the government has rightly understood that it presently needs to do nothing. Why interrupt your enemies when they are busy in the task of self-destruction?

Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a Junior Fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla

12 COMMENTS

  1. FOURSOME AWESOME
    No doubt apex court judges coming out in open to vent out their spleen at the CJI is something unheard of in the annals of judiciary. However, the amount of agony faced by the senior most judges in the highest court of the country perhaps compelled them to open up the can of worms in public.
    Much perturbing that even jurisprudence is polluted and corrupted with favouritism. Pushing aside seniors by CJI is yet another form of ‘discrimination’. Like the proverbial ‘robbing peter to pay paul’, the CJI transferred the medical admission scam case from Justice Chelameswar to another bench comprising younger judges. Irked by the disrespect shown towards him, Justice Chelameswar and three others had written a detailed letter to CJI which failed to evoke any response. Finally, they had no other option but to make it public the undesirable things happenings in the apex court.
    Though it is unacceptable for learned senior most sitting judges to pour out their woes before the media, the gravity of the situation at the highest court might have forced them to meet the media. In this piquant situation, the Central government is at tenterhooks as to what to do. Seems like the government hasn’t reacted to this. Perhaps, things would be sorted out in a day or two. However, this episode will become a precedent in the judiciary. Better for judiciary to set it’s house in order soon before things turn from bad to worse.

    M RAFI AHMED, Senior Journo and Chief of Bureau, Trinity Mirror, Coimbatore edition

  2. Poor and middle class people not able to get justice from your court due to decades of delays.
    This is the failure in he system.
    You people have summer vocation like schools.
    Effective utilization of your time needs to be reviewed by President.
    Political influence started from the beginning it is not new.
    Address corrupt people in your departments.
    Next to GOD people believe judiciary.
    Police are not filing FIRs and Advocates are not closing their cases.
    All the burden is put on public.

  3. First of all, this is not a ‘Revolt’. Few (some four) self-centered person are trying to de-rail the SC. They are just self-centered person who have virtual no say in India. This is just a ‘attempt to control’ the judiciary. Author is trying to create a issue for ‘nothing’.

  4. These judges are giving ‘threat to democracy. they don’t want that judiciary should florish in India. One of the judge is son Congress CM of Assam. Therefore, background speaks enough.

    • Mr. every body known that,of background. we should focus only issue.you don’t worry about that, now came to knowledge of in judiciary system.

  5. NOW, THE GAVEL SAYS ‘DISORDER…DISORDER’
    The hurriedly convened press meet by senior most judges of the highest court of India only proves to show their ire against the CJI not only for his partisan attitude, but for denigrating them by allocating sensitive cases to junior bench. Seems like there is no love lost between the four senior judges and the CJI for quite sometime.
    CJI’s denial to pay heed to their plea resulted in senior judges taking the media route to make it public. This doesn’t augur well for our country as it would become a bad precedent. Moreover, people will lose faith in the functioning of judiciary. The simmering differences between the senior judges and CJI could have been sorted out within the four walls.
    Professor Upendra Baxi in his book refers Justice V R Krishna Iyer for making Supreme Court of India as Supreme Court for Indians preserving the image and decorum of the highest court of India in high esteem.
    Digging deep into this, one could infer that except Justice Gogoi, the other three, who are due to retire during this year, weren’t concerned about the repercussions of this extraordinary meet as they have nothing to lose. Justice Gogoi is in the line for CJI post when the Justice Deepak Misra retires in October this year.

    SHEFA RAFI, Coimbatore

  6. I applaud ThePrint for carrying Mr. Madhav Khosla’s balanced perspective on the dissenting judges issue.

    Almost all other commentaries on this topic in ThePrint and other media outlets were unabashedly pro-establishment lamentations which underestimated the rot in the higher judiciary.

    For the last couple of years, Supreme Court Chief Justices have been dragging their feet on politically sensitive cases like the note ban and Aadhaar thus ensuring they result in either becoming inconsequential or fait accompli.

    Chief Justices with spine who can challenge the establishment’s status quo-ist tendencies are the need of the hour.

  7. This is a good article and appears to be unbiased. The crisis has arised on the manner by which allocation is being done. The allocation has to be purely based on the work load, expertise and such aspects. Allocation issue at best should be an irritant to the other judges. Afterall the 25+ supreme court judges are supposed to be above suspision. If there is any reason to doubt any of them to the extent that democracy is threatened then the Coligium to which the 4 esteemed judged are part off has totally failed.

  8. Modi ,Amithsha &BJP smashing the truths they will be procicuted by all Indians in 2019 elections .Please people don’t elect modi & company in future elections

  9. good article ..but can u answer in just yes or no, do u approve the decision of the judges to go public ? given the fact that they are also bounded by certain rules and regulations.. dont you think they should have resigned and than hold the press..waiting for answer ! M_Khosla

  10. I beg to disagree. If the four learned judges had genuine fears about the institutional credibility and trust of SC, they should have done one of the following two things: one, write to the President with exactly the same very points of their concerns which they thought to be the genuine ones (and if they feared that it may help executive to trespass inside their independent domain, they could have written to all the judges of the Supreme Court and asked for a full SC meeting). Two, submit their resignations with all those points of concerns mentioned therein. But alas, they indulged in a turf war. They also have resorted to a communist method where ‘means’ justifies the ‘end’. Is that not against the basic judicial principle of ‘due process’ which these honorable judges are required to defend and enforce in every judgement ?

    The one damage this episode has done to my trust in judiciary is this: I thought that all judges are equal and non-partisan. I believed that any case going to any judge – of course with the domain background, we will get the justice: like the proverbial ‘tandul nyay’ (Tandul=rice, Nyay=justice) which means that while boiling rice, you take out one grain of rice to test if the rice has boiled enough or not. But the four judges have said that it is not so. And they have contradicted themselves there: on one hand they say that the CJI is just ‘first among the equals, nothing less and nothing more’ but at the same time they imply that senior judges – which they are, have better wisdom than the junior judges ! So, is the CJI equal to them four but they four are unequally senior to the remaining SC judges ?

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