Indian Judiciary: Managing a Catastrophic Nemesis

In the recent decades, the Indian judiciary has often been criticised of the hyper ‘judicial activism’ though with considerable restraints due to the sensitivities and fear involved. But it met an unprecedented nemesis on Friday, the 12th January 2017 when four senior most judges, who are also a part of the Supreme Court Collegium – came out in public through a hurriedly called press conference to express their anguish and complaint against the Chief Justice of India Dipak Misra – an event no less than a catastrophe in the Indian judicial history. The four judges are Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph who are also the senior-most senior judges after Chief Justice Misra.

During the press conference, they also released their joint letter to the public through media, making allegations against the Chief Justice about the bypassing of established norms and traditions in his capacity as the master of roster in assigning cases to the benches. They also criticised for the delay in finalising the new memorandum of procedures (MOP) about the appointment of judges to the Supreme Court and High Courts.

This unprecedented press conference exposed the otherwise invisible deep cracks in this important constitutional pillar of the democracy. Although the judges did not specifically brought out the immediate cause and the cases in detail citing sensitivities involved and that they didn’t want to embarrass the institution, but it was amply clear that one of the cases related to the allocation of the politically sensitive CBI judge Brijgopal Harikishan Loya’s alleged unnatural death. Another specific case in which senior judges appeared peeved pertained to a petition lying in the Supreme Court which is referred to as the ‘medical colleges scam’, a case of bribery in respect of the admissions in the private medical colleges.

While interacting with the media, Justice Chelameswar justified their action by saying that the democracy in the country would not survive without an institution as important as the Supreme Court, and they owed a responsibility to the institution and nation for a free judiciary. “Our efforts have failed in convincing CJI to take steps to protect the institution," the judges said. "It is with no pleasure that we have been compelled to do this, administration of Supreme Court is not in order," they said. In their open letter to the Chief Justice Misra, inter alia following specific observation is notable:

[“…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 judges added, “We are not mentioning details only to avoid embarrassing to the institution but note that such departures have already damaged the image of this institution to some extent.”]

Unfortunate though it is but this was bound to happen sooner or later not so much because of the personal rivalries and ego clashes but for the basic flaws in the functioning of the apex judiciary i.e. the lack of transparency and elements of arbitrariness in the matter of appointments and running of the administration since long. The brewing discontentment among the judges with the allegations and counter allegations of impropriety only further deepened the crisis.

Specific Issues

Though the aggrieved and rebellious judges didn’t categorically mention the specific instances and the so called sensitive cases allotted to other junior judges ignoring their seniority, but at least two specific cases found a reference during their interaction with the media apart from their general disillusionment with the working and administration of the Chief Justice of India (CJI).

  • The CBI judge BH Loya was presiding over the Sohrabuddin Sheikh fake encounter case when the judge died allegedly of a heart attack in December 2014 but two years later the Caravan magazine published an article raising doubts about Loya’s death. The case was considered politically sensitive because the BJP president Amit Shah and several Gujarat police officers were under trial as accused in this case. Ever since there was a demand from various sources mainly from the political angle for an independent probe into Loya’s death, and the case was recently allotted by the Chief Justice to a bench comprising judges other than the four senior most judges.

  • Another case related to what has been now known as “medical colleges scam” currently heard by a bench presided by the Chief Justice Dipak Misra. Earlier the CBI had arrested a former judge of the Odisha High Court for taking bribes from the medical colleges for the alleged assurance of favourable orders from the Supreme Court. Some time back, Justice Chelameswar had admitted another petition seeking a probe into the alleged scam and ordered the case for hearing of a constitutional bench. However, CJI Misra put together a five-judge bench to reverse his order and assert his right to be the sole master of the Supreme Court roster. Obviously, this would have not gone well with Justice Chelameswar. The vital issue in this case is the alleged corruption in India’s higher judiciary.

  • Yet another point on which four judges appeared unhappy is regarding finalisation of the memorandum of procedures (MOP) for the appointment of judges. The National Judicial Appointments Commission Act (NAJC) passed in the Parliament in 2015 was earlier struck down by the Supreme Court by a majority vote but had agreed for the MOP. Subsequently, there has been a stalemate between the Government and Supreme Court in finalising the MOP over some sensitive issues.

  • The four judges also questioned the conduct of the Chief Justice citing his administration was not in order and there seemed concerted attempts to push certain issues under the rug.

Reactions on Judges’ Unprecedented Move

As was the unprecedented move of the senior most judges of the Apex Court so were the impromptu reactions from the various walks of life such as judiciary, politics, national and social media. However, barring a few sane voices trying to see reasons on both sides, the most of the comments reflected coloured visions according to the commentator’s background, social or political leanings and affiliations. For some political parties including the Congress and their sympathisers, the unfortunate even came as a golden opportunity to see political dimension in the crisis in an endeavour to embarrass the Government at the Centre. Following are a few such reactions out of a plethora of ‘no bars’ statements and outburst from the politics, judiciary, and legal and non-legal luminaries:

  •  Retired Justice RS Sodhi was extremely critical and candid in condemning the action of the rebellious judges and said that all the four judges should be impeached; they have no business to sit at Supreme Court and deliver verdicts anymore. They are only four and there are 23 others. We have dissenting views on so many things. But we do not go around washing our dirty linen in public. The damage can’t can be mended easily.

  • Retired Justice Mukul Mudgal called the move unprecedented and avoidable. But he also agreed that the four judges are four very sober and respected. If they have had to resort to a press conference, there must have been very compelling reasons.

  • Former Chief Justice of Allahabad High Court FI Rebello called the incident as disturbing and disheartening. He said that the senior most four judges resorted to such unprecedented action, it points out to a lack of confidence in the Chief Justice, at the end of the day.

  • Another Former Supreme Court Judge PN Sawant told that the judges had come before media taking this unprecedented step. There is a serious dispute, either with the Chief Justice of India or some internal dispute.

  • Senior Advocates in the Supreme Court such as Prashant Bhushan, Indira Jaising and Dushyant Dave, who are usually known for their anti-government stand, were prompt to react casting aspersions on the working of the Chief Justice and even the Government. Indira Jaising lauded the four judges as having well done by letting the nation know that something is going wrong that needs to be corrected. Prashant Bhushan in his characteristic style was more vocal and explicit in his criticism that the Chief Justice is blatantly misusing his powers.

  • KTS Tulsi, Senior Advocate and politician, suggested that there must have been compelling reasons for the senior-most judges to have adopted this course of action. One could see pain on their faces while they were speaking.

  • Former Supreme Court judge Santosh Hegde condemned the action of four senior judges in going public over internal matters of the judiciary. He said institutions like the judiciary survive on the confidence of the people and once the confidence of the people is lost, the institution will be useless. Agreeing that the judges’ intention was to bring the muck out of the system, he disapproved of their approach as it would set a new precedent where judges of the High Courts and Supreme Court would start bringing their differences into the public domain.

  • The Congress under Rahul Gandhi found it as an opportunity to renew their scathing attack on the Modi government. Addressing a press conference on the same evening, Gandhi scion lauded the points raised by the four judges as extremely important. He mentioned the threat to democracy cited by the judges needs to be looked into carefully, and that the case about the suspicious death of justice Loya needs to be looked at from the highest levels of judiciary. Manu Singhvi, another Congress party leader and senior advocate too expressed similar views.

  • The Central Government on their part cautiously avoided expressing any controversial remarks on the development of the judiciary. The Attorney General KK Vengopal, however, said that the move of the four Supreme Court judges to hold a presser could have been avoided. At the same time, he hoped that all the judges including the Chief Justice would rise to the occasion and wholly neutralise the divisiveness.

  • Bar Council of India Chairman MK Mishra said that holding a press conference on a minor issue of the roster was saddening. He suggested that the matter should have been sorted out internally rather than bringing it to the public platform.

How Justified are the Issues?

BH Loya Case:

Brijgopal Harkishan Loya was a judge CBI Court who, at the time of his death, was presiding over the Sohrabuddin Sheikh case who was allegedly killed in a fake police encounter. He had gone to Nagpur on 30 November 2014 to attend the wedding of one of his colleague’s daughter. While staying at the state government guest house, reportedly he developed chest pain in the early morning on 1st December, was hurriedly taken to a nearby hospital, then shifted to a bigger hospital but did not survive. His post mortem report revealed ‘cardiac arrest’ as cause of the death. Loya's family initially had some suspicion about his death having seen some blood stains on his shirt collar which Medical experts disagreed suggesting it was due to the post-mortem examination. Recently when the controversy erupted, Loya's son said in a press conference on 14th January 2018that the family no longer had any suspicion over his father’s death; their family lawyer too clarified that the press conference was held to dispel any doubt over Loya's death, and to confirm that the family does not suspect any conspiracy in his death.

Notwithstanding above, different conspiracy theories and postulations have been floating since the judge was handling a politically sensitive case at the time of his death. A senior Congress leader and advocate stated that the son's denial should not have any bearing on the independent probe of Loya's death. Apart from the Caravan magazine, other press/media groups like Indian Express, NDTV and a portal ‘The Wire’ had also been interested in the story. On 10th January 2018, the Bombay High Court admitted a PIL petition seeking a probe into Loya’s death and listed the matter for hearing on January 23. However, on 12th January 2018 another PIL was filed in the Supreme Court too and the case was allotted to the bench of Justices Arun Mishra and MM Shantanagoudar, who considering the seriousness of the case issued notices to the Maharastra government seeking their its response.

According to the reports and perception, the Loya case appears to be the main cause for the four senior most judges’s anguish due to the allotment of case to a junior bench. Apparently, they first spoke to the Chief Justice in the morning and later held a press conference around noon accusing him of allocating cases selectively based on personal preference among other allegations. To a specific media question about their meeting with the Chief Justice in connection with the judge Loya’s case, Justice Gogoi replied in affirmative during the presser. It appears that the decision of the Chief Justice to hear this petition when the Bombay High Court was already seized of the matter and then allotting it to a bench that did not involve any of the four senior-most judges, was the precipitating point for the four judges to take the extraordinary step of calling the media.

Medical Colleges Scam:

In September 2017, the CBI arrested Odisha High Court former justice IM Qudussi for allegedly taking bribe and assuring favourable orders in the Supreme Court in an alleged case of a UP based private medical college namely Prasad Institute of Medical Science earlier barred by the government from admitting new students because of the shortcomings in their infrastructure. In essence, this is an alleged case of corruption in the higher judiciary.

The Supreme Court's handling of the medical-admission scandal is one of the triggers of the raging controversy between CJI Dipak Misra and the other senior most judge Justice Chelameswar. In November a bench headed by Justice Chelameswar admitted a petition seeking a probe into the alleged medical colleges scam and referred it to a Constitutional bench when the case was already before a bench presided by Chief Justice Misra. Following day, Justice Misra reversed this order through a five-judge bench asserting the right of the CJI as the sole master of the roster. Through the petition earlier admitted by Justice Chelameswar, the petitioner did not want Justice Misra to hear the case citing the conflict of interests.

An Objective Analysis & Opinion:

Let’s see first a little background of the politically sensitive case the CBI judge Loya was handling at the time of his death. According to the available information and reports, Shahabuddin Sheikh was a hardcore criminal having links with the crime network of the underworld kingpin Dawood Ibrahim and the banned global terrorist organization Lashkar-e-Taiba and Pakistani ISI. At the time of his alleged killing in custody in November 2005, he had more than 60 pending cases against him ranging from the extortion and protection money, arms smuggling, several murder cases in various states and a conspiracy charge planning to kill a high profile leader. It is indeed an irony of Indian democracy, that even such hardcore criminals and terrorists, a curse on the society, too find sympathisers among the politicians and civil society in the name of secularism and fundamental rights, particularly if it suits them to settle political scores. The CBI judge Loya was entrusted for the hearing of a case against several Gujarat state police officers and Amit Shah, BJP president (then a junior minister in Gujarat government), for Sheikh’s alleged killing in a fake encounter.

After more than two years of judge Loya’s death, the Caravan magazine first published a story in November 2017 raising several issues in the alleged suspicious death. The case was also closely followed up by Indian Express, NDTV and The Wire; the latter too published an article towards the end of November 2017 based on Caravan’s story and repeated it again after four Supreme Court judges’ rendezvous with media on 12th January 2018. The pointers were raised about the timing and mode of Loya’s reach to Dande Hospital after experiencing chest pain, whether ECG was done or not done, date discrepancy on the ECG printout, time of death, declaration of death at the Meditrina hospital, signatory on the Post mortem report, blood stains on the judges’s clothes and transportation of his body from Nagpur. A wild narrative was also included the magazine’s report about the bribery offer made to the deceased judge by the former chief justice of the Bombay high court citing some relatives as source.

A careful examination of the issues raised by the reporter of the magazine(s), any person of common prudence and unbiased mind would easily understand the superficial grounds around which these magazines have centred their story. From its own illustrations in 'The Wire’s report', it has accepted that Indian Express too made independent quest but didn’t find any suspicious ground for further investigation into the death. Even the blood stains on body or clothes after the post mortem can be reasonably explained. The only reason to cause concern appears the judge’s relatively young age (48 years), generally good health and the sensitivity of case he was handling at the time of death. In the event of genuine suspicion, such things should certainly be got investigated under the supervision of the judiciary but without creating unnecessary fuss and controversies to malign the image of any respectable person, be it a politician or judge as is being done by a section of media, politicians and even judiciary.

In an attempt to score over their rivals, some people are stooping so low these days in their public life. Regrettably, only some time back the Congress party president while addressing NRIs from about fifty odd countries in Bahrain inter alia stated that there is serious problem back home and the judges investigating sensitive cases (obvious reference to Loya case) die under mysterious circumstances. Putting at rest to all speculations, now CJI has decided for the transfer of all pending petitions relating to the judge Loya's death for hearing by a single bench under him comprising of three judges. Similarly, just because the CJI hails from Odisha and was earlier too reportedly associated with the adjudication of such scam, it is not fair for anybody in judiciary or outside to question his handling of the medical scam case citing it as a 'conflict of interests'.

Unfortunately, many personally aware and politically sensitive people are found to have either pro- or anti-establishment views. Such people are there in all walks of life including ordinary public, NGOs, bureaucracy, politics, media, and so on…, and even judiciary is not entirely free from this symptomatic bias. Consequently, they try to see things and events in a perspective, favourably or unfavourably, that suits to their vision, ideology and interests. Besides, some of them are heavily biased in their preference to a system of governance and ideology, and have strong liking and disliking about the individuals and parties accordingly. Consequently, such people particularly in media and politics often consciously and deliberately raise controversies to get more publicity and footage.

The Caravan magazine was closed in 1988 and now in a new avtar since January 2010 they are possibly endeavouring hard to augment business and circulation relying more on political affairs and often controversial matters, even by sensationalising certain issues. They themselves have invited controversies and litigation in some cases in the recent years. Hence it is not surprising that they are taking special interest in this case. On the other hand, The Indian Express too is generally known for their anti-establishment stand but their journalism has usually centred around a judicious, rational and balanced approach since long irrespective of the government or party in power.

In any institution, the mutual trust, confidence and understanding among the top functionaries is vital to its smooth and efficient functioning. This understanding comes from the unquestionable integrity, transparency, cooperation and commitment among the key functionaries for the greater good of the institution. In the event of the lack of these virtues and trust-deficit, they start perceiving every development as motivated and suspicious. Therefore,while the CJI needs to acknowledge and honour the sensitivities of the senior judges but the judges too should acknowledge his authority and importance. So long the CJI is the master of roster, the other judges could request or persuade him to deal with a case in a particular right way but they cannot assume the power of constituting a bench. In such situations, any administrator or top functionary suo moto starts relying more on colleagues whom he trusts more irrespective of their seniority. This trust-deficit is clearly apparent now among the senior most Supreme Court judges which also appear a root cause behind the problem.

Let’s see what the four senior most judges wrote to the Chief Justice about the seniority and roster. According to them, the privilege of the Chief Justice in the context of roster is on account of a disciplined and efficient transaction of the business of the court and not in recognition of any superior authority, and that the Chief Justice is only the first among the equals - nothing more or nothing less. If this insinuation is correct, at present there are twenty-five sitting Supreme Court judges including the Chief Justice, logically all the judges are at par by their own acknowledgement and, in that case, the four judges should not have any grievance in the first place in so far as seniority in allocation of more important cases is concerned.

Now let’s see this concept of the first among equals in a parliamentary democracy. Conceptually, even the status of the prime minister has been described as primus inter pares i.e. first among equals in the context of his relationship with the Cabinet in any parliamentary democracy. It is of everybody's knowledge, without an iota of doubt, what kind of authority, clout and eminent status the prime minister enjoys vis-à-vis the cabinet, government and party in any parliamentary democracy in the world. This is true in India; this is true in other parliamentary democracies in the world. In India, apart from the charge of administration and roster, the salary of the Chief Justice of Supreme Court is also consciously kept higher than the other Supreme Court Judges and Chief Justices of High Courts. Therefore, if a colleague undermines the authority of the Chief Justice and questions his seniority and integrity on the basis of roster formation, one is bound to receive a commensurate response, however, inconvenient or embarrassing it could be for him.

Even outside judiciary, the author has noticed several responses rejoicing and justifying the action of the four judges as if they are real crusader and things in the Supreme Court administration are really not well. Like I said earlier that many people love to be anti-establishment by nature, and tend to find faults virtually with every head of the institution assigning every wrong-doing past or present to his credit. There is no dearth of such people in the environment and it would be useless to talk reason with them. During his own prime years, the author has seen colleague bureucrates who keep cribbing about the administration of  superiors, and then how lacklustre remains their own conduct and performance when they themselves hold same authority. Be it the Loya death case or medical college scam it is too far-fetched and presumptuous on the part of people in judiciary and outside to doubt the action or intent of the CJI. If some people do not have faith on him because of his choice of a bench then many people find the meeting of the prominent leader of a political party with one of the four judges on the same day objectionable too.

The Fallout of the Muck

By going to the public on 12th January for bringing out their differences with the Chief Justice, the four judges have, intentionally or unintentionally, also revealed many avoidable practices and vulnerabilities of the judicial system. In the past, the Supreme Court judges were not known to have ever accused anybody in public or ever been vocal to defend self, other than the constitutional remedies and deterrents available under the law. This is particularly notable because only sometime back when a particular judge of another constitutional court held a conference, it was outrightly condemned as sacrilege by the very institution. Here, they revealed the contents of own letter written to the CJI about primus inter pares for the consumption and comments of all and sundry. So far every conscious person, however unhappy or unsatisfied, had avoided comments and discussion on judiciary in public and social media due to sheer respect and some element of fear too. This incident may cause a paradigm shift in people’s mindset bringing some discomfiture to the judiciary in future.

The interaction of judges with media and the letter released opened a pandora of issues and a perception that everything is not alright in the apex sanctum sanctorum of the judiciary. A clear evidence emerged suggesting ample elements of arbitrariness and secrecy within the walls of judiciary that expects and talks so much about the transparency, propriety, and freedom of speech and expression in public life. The issue of preferential allotment of benches which the judges themselves pointed out directly impinges upon the integrity and propriety issues in the constitutional institution. The inherent contradictions contained in the letter released also expose the infirmity and vulnerability of the jurisprudence. On one hand, the four judges attempted to justify that the Chief Justice is only ‘first among equals – no more no less’ yet they had wisdom to talk about the seniority vis-à-vis the remaining twenty judges in allocation of cases.

The letter also illustrates how the MOP was sent to the government duly approved by the Collegium and since the government has not responded, thereby it means acceptance. In constitutional matters, the alleged acceptance by silence has no sound logic or rationale particularly when the onus for its preparation and finalization for the implementation is in the domain of the executive i.e. the government of India. It is in the knowledge of public domain that there are unresolved differences in MOP on the issues like ‘national security’. Unity and solidarity of the institution is also crucial for its continued credibility and meaningful service in a democratic nation.

Judicial Reform: Memorandum of Procedures

One of the points made by the aggrieved judges was regarding the memorandum of procedures (MOP) relating to the appointment of judges and allied matters. In India, we have a unique system in the country where the higher judiciary appoints itself in the name of independence and undue interference from the government (executive). Earlier, the country had inherited the British system where judges were appointed by the President on the advice of the Union Cabinet in the higher judiciary. But after a couple of judgements to the contrary, the Supreme Court decided in 1992 that the judiciary’s independence could be maintained only if they take the process of appointments themselves. Consequently, a Collegium was constituted comprising of the Chief Justice and two senior most judges (now four) in 1993 to take over the work from the government. The apprehension of the Supreme Court was not entirely misplaced then because of the controversies during the emergency and certain unscrupulous decisions subsequently by the Government in appointment of judges.

However, ever since the Collegium system too has often been criticised even from within the judiciary itself for the lack of transparency and arbitrariness that makes it as bad as the governmental interference, if not worse. In the past, even some retired judges have complained about the widespread innuendos of institutionalised groupism, favourism, nepotism and ego clashes. This necessitated a change in the existing Collegium System like many other democracies are having appointment procedures with adequate check and balances from the stakeholders like executive, legislature and judiciary. Even United Kingdom is known to have implemented radical reforms in 2005 by enacting the Judicial Appointments Commission with needful checks and balances from the other democratic institutions. Hence in 2015, the Parliament passed the National Judicial Appointments Commission (NJAC) Act to replace the Collegium System making necessary changes to the process of appointment of judges. In the revised procedure, 50% members were from the Supreme Court with the CJI to chair the Commission thus retaining the supremacy of the Apex Court in the matter.

This law was, however, struck down by the Supreme Court through a judgement from a Constitutional bench on the ground that it violated judicial independence. Thus the Supreme Court did not accept a system that, though was dispensing with its sole authority yet allowing it to have maximum say retaining the pre-eminence of the judiciary. The Apex Court, however, agreed to reforms in the procedure of appointment through a new memorandum of procedures (MOP) to be made in consultation with the Central government. The draft MOP was indeed prepared by the Government but could not take a shape due to difference of opinion between the Government and Supreme Court over certain issues and the latter’s determination to prevail upon in any such case. The MOP was last sent to the Government in March 2017 approved by the existing Collegium. The four judges had also criticized the Chief Justice for the delay and failing to move ahead with the MOP.

Actually the delay or perceived stalemate in finalising the MOP is not without reason. It began after the December 2016 and as many as three drafts were reportedly exchanged between the existing Collegium and the Goernment in their bid to reach a common ground. During the process, the Collegium had not accepted any clause stipulating a substantive say of the Government in the process of the appointment. In the final draft sent in March 2017, the Collegium is believed to have discarded even the last ditch effort of the Government to have the final word on the appointment of a judge at least technically when such an appointment could jeopardy the ‘national security’. Incidentally, Justice Chelameswar and Justice Gogoi were also a party to the Collegium decision. After this, the government apparently deemed it proper to hold their hands rather than being perceived in conflict with the determined judiciary.

The point is that there is indeed an element of arbitrariness and lack of transparency in the higher judiciary including their procedure for appointment. A healthy democracy should not worry much to the individual cases or incidents involving unsuitable appointments or events but the arbitrariness and shrouding secrecy over a process is certainly a cause of concern. In the absence of checks and balances, a system not only remains prone to mal-functions but also at times may put at risk the very society of which it is also a constituent. In fact, Justice Chelameswar, the senior most judge after Chief Justice Misra, is known to have been in favour of the NAJC when the Collegium had struck down the Act by a majority.

Now that the highest judiciary is experiencing turmoil on account of the stated deficiencies, it is high time that the Supreme Court itself endeavours to build a consensus among themselves for a more comprehensive reforms and restructuring of the judicial process including appointments. They would be doing a great service to the nation and Apex Court by reviving and reviewing the NAJC or a more comprehensive law somewhat like a Supreme Court Act to get passed by the Parliament after due consultation with all stakeholders. If this doesn’t happen, the Parliament must take somewhat similar initiative once again. Such a move is the demand of time so as to ensure a coherent jurisprudence, careful contemplation of admissible issues and minimizing the discretion element which right now appears a bone of contention among the senior judges.

A Layman's Hindsight

In the recent years, the press, electronic and social media have emerged as a very potent and powerful mechanism for the expression, open debate and redressal of grievances or injustice done in many cases. No one outside the Supreme Court is fully aware of what all really transpired behind the scene  precipitating the issue to the extent that the senior most judges found it obligatory to express their anguish and dissent publicly. Therefore, to surmise that the judges should have stayed away from the public gauze by all means appears to be highly presumptuous and ill-founded. Hence there is no point in criticising and questioning the wisdom of the senior judges for this reason.

However, all of us are aware of the principles of the natural justice and, at times, even courts intervene to see that everyone follows it. Knowing very well that holding a press conference would instantly generate nationwide intense heat and public debate, the judges too were required to follow it by exhausting available channels before taking the extreme step of calling the national media. Apparently, they had already taken up the issues with the CJI and the issues remaining unresolved, the following two options were still available as has also been pointed out by many others during the massive public debate and reaction over the last few days:

  1. The issues should have been raised and discussed in the assembly of the full court as there are a total of 25 judges including CJI with vast legal and judicial knowledge and wisdom;

  2. The issues remaining unresolved in such a meeting, the President of India could have been approached for his intervention and amicable settlement of issues.

Another important issue is that apart from problems of groupism, favourism, arbitrariness and lack of transparency cited in the context of the higher judiciary, the allegation of nepotism is also made at times. Such issues can be effectively tackled and apprehensions neutralised only if the Collegium or Judicial Commission constituted for the selection/appointment of judges also comprises of a reasonable number of external members while still retaining the strength and supremacy of the judiciary. Besides, a system of periodical peer review as prevalent in the Government could also be useful in augmenting the transparency and credibility, even if such members are entirely from the exclusive gamut of the judiciary.


More by :  Dr. Jaipal Singh

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