An unprecedented press conference by four senior judges of the Supreme Court shook up the country. What has been surprising is the silence of the judges, government, media and the public that has followed. The four judges themselves had said that they had no choice left, but to talk to the nation directly. Their letter to the Chief Justice, which was made public at the press conference, had also highlighted that all is not well within the judiciary. In the frenzied atmosphere, multiple stakeholders, i.e. the Attorney General, Bar Council of India, Supreme Court Bar Association all jumped into the fray and laid claims to a truce. However, all such talk later became falsehood. The lull after the clarion call, made from the highest echelons of the judiciary is the real danger for democracy in India.
Even though little was said in the press conference on January 12, 2018, but the message is clear that the four judges were inviting national attention to the following:
a. Discretionary powers of Chief Justice as per the principle of the master of roster
b. Challenges in the appointment of judges through Collegium System
c. Corruption in Judiciary which took a new height in Medical College Case
The overall theme was accountability of judicial system to the common people, which is also provided by the Constitution. Steps have indeed been taken to ameliorate some of the issues, yet there is no clear way going forward.
MASTER OF ROSTER
In their letter, the four judges had said, “one of the well-settled principles is that the Chief Justice is the master of the roster with the privilege to determine the roster, necessity in multi-numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which members/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court, but not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues. It is too well-settled in the jurisprudence of this country that the Chief Justice is only the first among the equals — nothing more or nothing less.” The four judges, as a secondary point, had also stated, “In the matter of the determination of the roster, there are well-settled and time-honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with the particular case or the composition thereof.”
The sync of the above two principles is what the four judges were seeking. However, a Constitution Bench of Supreme Court, of which Chief Justice himself was a member, declared Chief Justice to be the master of the roster.
Thereafter, as the chill remained in the corridors of the Supreme Court, different suggestions to the allocation of cases came to the fore. Some suggested that only the top five judges of the Court should hear PILs, while some favoured the allocation of cases by the Chief Justice. Demands were also made for the rational allocation of cases as not every judge is well versed in every domain of law. In fact, the former Chief Justice of India JS Khehar had once stated that he only knew the administrative law when he was elevated to the Bench. The example of Delhi High Court was also cited wherein the cases are distributed amongst the judges as per a set mechanism. Eventually, in a welcome move, the Chief Justice of India did publish a roster on the recommendation of Supreme Court Bar Association. one hopes that it will ensure the overall environment of a particular law subject in court, perhaps leading to better justice delivery. Nevertheless, the roster is applicable only to fresh cases and such is its generality that the only thing noticeable is that all PILs will be heard by the Chief Justice Bench. But what about days when the Chief Justice is not available? There is no answer to the same.
APPOINTMENT OF JUDGES
The chill in bonhomie amongst the first five judges of the Apex Court was also given wind by the fact that the minutes of the meetings relating to an elevation of Uttarakhand Chief Justice K.M.Joseph and Senior Advocate Indu Malhotra were made public after a long time. Even otherwise, the disdain for Collegium system was mentioned in the NJAC judgment itself. Even as the Memorandum of Procedure for the appointment of judges is pending with the Government, it did become the eye of the storm in the judiciary. It is true that the Supreme Court for a long time had not said anything on the MoP (Memorandum of Procedure for the appointment of judges), except amending and returning the draft sent by the Government.
The letter by four judges also shows their thinking wherein they had the understanding that in view of the stoic silence of Government on the draft sent by Judiciary, the draft sent by Judiciary would have become final. However, seemingly, judicial impropriety killed any such the order in RP Luthra case has put back the ball back in the court of the government, it will be interesting to see what spurs the sparring on this issue.
CORRUPTION IN JUDICIARY
The medical college scam brought to fore instances of corruption in the higher judiciary. A retired High Court judge was arrested in what was purportedly an effort to bribe judges of the Supreme Court. In subsequent events, an in-house panel was constituted by Chief Justice of India to examine the impropriety of judicial actions of Justice SN Shukla of Allahabad High Court. Justice Shukla had allegedly altered his order regarding clearance to a medical college. The in-house panel constituted to examine the conduct of Justice SN Shukla was headed by Chief Justice of Madras High Court, a move that does not have any serious legal backing. Constitution has mandated independent administrative structure for the High Courts. Yet, the panel has reportedly recommended withdrawal of all judicial work from Justice SN Shukla and has also recommended impeachment chances as on 27th October, 2017 in R.P. Luthra vs. Union of India, a Bench of Supreme Court said that there should be no further delay in finalising the MoP in the larger public interest. As a consequence, finalisation of MoP was given a fresh lease of life. Subsequently, in advancing their concern, through their letter, the four judges also pointed out that MoP was deliberately not discussed in the Karnan case, and that order in R.P. Luthra vs. Union of India did more harm.
Even as on date, the finalization of MoP has remained stagnant. The appointments are being made through the Collegium System, with some of them receiving opposition from the Centre. The minutes of the Collegium meetings are also out in open, giving rise to question marks over the credibility of quite a few who are not elevated.
The letter by four judges had stated that “Any issue with regard to the MoP should be discussed in the Chief Justices conference and by the full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.” As proceedings against him.
Former Arunachal Chief Minister’s Kalikho’s Pul alleged suicide note raised eyebrows with respect to allegations of involvement of senior judges of Supreme Court in corruption. Justice Karnan further fuelled the fire by making such allegations public in his letter to the Prime Minister. once appointed, there is no mechanism to act against judges, except impeaching them. It is noteworthy that no judge has been impeached in India because the procedure is very cumbersome. As Kalikho Pul committed suicide, Justice Karnan became the only sitting judge to be arrested and sent to jail. Justice Katju on earlier occasions had alleged that former judges have amassed unaccountable wealth and that no action is being taken against them. Former Law Minister Shanti Bhushan had stated under oath that eight former Chief Justices of India were corrupt. Supreme Court in Karnan case had clearly stated “the need to set up an appropriate legal regime to deal with situations where the conduct of a Judge requires corrective measures - other than impeachment – to be taken.”
The fact that members of the judiciary are always under scrutiny has brought to fore instances of both financial and moral corruption. The system of “uncle judges”, i.e. children of judges practising in the same court has unfortunately become an acceptable norm in the judiciary. Regarding misdemeanours, which are not serious enough to require impeachment, no steps exist in our system. Remarkably, the need for such a system was visualized in the Karnan judgment itself, wherein it was stated, “There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for the impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. Maybe it is time for the nation to debate this issue.”
The Supreme Court has mandated that while filing nomination for an election, not only the candidate, but also their dependents should file affidavits stating their sources of income and assets. It is really worthwhile to consider the same for the judiciary as well. My suggestion of Mandatory Affidavit to appoint judges will ensure the independence of the judiciary while reforming the judicial system as per the parameters are given by the SC itself. “Mandatory Disclosure Affidavit” is similar to an affidavit submitted by politicians to the Election Commission and should be submitted by a person at the time of giving his preliminary acceptance for being appointed as a judge. The proposed affidavit, may be in line with Art. 124, 217 and oath under Schedule 3 of the Constitution. It will ensure that after the appointment of a person as a judge and anything in the affidavit is found to be incorrect, such a judge can immediately be removed, without going into the process of impeachment. It will be mandatory to disclose details such as educational qualifications, details of dependents, and also if there is any relation with any person involved in the process of the recommendation of the name as a judge. The Affidavit would enable public participation as the Affidavit filed would be available in the public domain, wherein anyone can raise objections against the affidavit, which could be investigated and checked. In one stroke, it can resolve the arbitrariness in appointments and also the need for adequate action in case of misdemeanours. The Affidavit also takes away the possibility of any interference from the power centre of government, judges, bureaucrats and senior advocates, and hence increasing the credibility, integrity as well as the independence of the judiciary.
PREDICTING THE FUTURE
The cases creating news at Supreme Court are mostly PILs or other high profile matters that relate to politics in the country. Aadhaar, Bofors, Ram Mandir are all matters that are being heard by the Chief Justice’s Bench. Rationalization of the roster, judicial appointments, and judicial discipline indeed are challenges before the judiciary. The future at the Apex Court could be tumultuous. Justice Gogoi will be the senior-most judge after the retirement of CJI Dipak Mishra. However, the participation of Justice Gogoi in the press conference has given winds to speculation over his becoming the next Chief Justice. It is not that judges have not been superseded before, but such supersession has always stayed as a stigma to the ruling dispensation. Justice Chelameswar in the press conference had said that “wise men should not say in future that we sold our souls.” A quiet burial to the press conference saga by the present judges will not ensure that the episode is forgotten from the institution’s memory. With the tenure of Chief Justice about to come to an end this October, it will be interesting to see the unfolding of the judicial saga.
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