Supreme Court: A court under siege

By SK Padhi*

The Supreme Court of India is a great institution which is a fundamental pillar of our democracy. It is the ultimate arbiter of human rights and dignity, protector of fundamental rights, guardian of the basic fabric of the Constitution. There is no issue in India where the Supreme Court has not left its imprint and touched the lives of the common citizen. With the executive of the country being mired with incompetence and lethargy, the Supreme Court has taken on the mantle of being an activist judiciary and has stepped into the role of the supreme power to compel the executive to bring the benefits of the welfare state to the poorest of the poor. The people of this country have looked up to the revered institution and more than welcomed its decisions.

But these days the citizens are watching with horror and are stupefied by the fact that the present Supreme Court is in a terrible state of divide; divide amongst judges and lawyers, amongst lawyers and lawyers and worst of all between the judges themselves-each taking sides and sullying the other. The language used in Supreme Court both by the Bench and Bar is intemperate, the bonafides of all has come under scrutiny and political inroads are being speculated. Never in the history of Supreme Court, has it touched such a low ebb. Even in the times gone by, when the Supreme Court was under assault by the executive under Indira Gandhi, the issue of supersession was dealt in a dignified manner by the resignation of four brilliant judges. But the legal fraternity was united and stood steadfastly behind them and the crisis passed. The institution emerged stronger and together. But presently, the entire legal fraternity has been divided and the Supreme Court has become a cauldron of innuendoes, vilification and speculation. Things have come to such a pass that political parties and the lawyers associations are now fishing in the muddied waters.

If we were to start look into the genesis of the present crisis, the ball was set rolling by the four senior most judges of the Supreme Court. They had grievances against the CJI, particularly regarding the allotment of matters and constitution of Benches. Their grievance may be genuine but their manner of expression in a press conference did more harm than good to the institution. Sitting judges cannot and should not air their grievances in the running of the judiciary in public. This is the minimum judicial discipline and decorum which they should follow. One cannot denigrate your own institution regardless of your anguish as to the state of affairs. What if all the senior judges of the High Courts or subordinate judiciary take up cudgels against their Chief Justice. It will lead to judicial chaos and anarchy. The Supreme Court being the apex court of the country has to set the standards for the entire judiciary to follow.

Coming to the role of four distinguished lawyers of the Supreme Court, Dushyant Dave,  Kamini Jaiswal, Indira Jaisingh and Prasant Bhusan. They may genuinely feel that the Supreme Court is becoming a caged parrot or there are political inroads by the ruling party into the corridors of Supreme Court which is unacceptable in itself. Their perceptions may also be correct. But it was also important they should not appear to have a single minded agenda i.e. to denigrate the CJI by making continuous slanderous and contemptuous utterances in court and press. They certainly cannot file successive petitions as they did in the Medical Council case of Prasad Educational Institution and indulge in bench hunting to get their matter listed before specific Benches.

Even Chief Justice of India has not been left blemish free in this saga. He has to also share the blame for the present abysmal state of affairs. His lack of coordination with senior judges speaks of failure of his leadership. His presiding over the Bench in a few sensitive matters indirectly concerning his position and his powers as CJI is probably against the known judicial principles that “no one can be a judge in his own cause”. Further, hurried constitution of Benches, abrupt administrative orders being passed is absolutely undesirable. Most importantly, the Chief Justice does not appear to have taken any active steps to ensure that the recommendations of the collegium are brought to fruition (namely that of Indu Malhotra and Justice Joseph). This is a new weapon of the executive to keep appointments not of their choosing in the limbo. It has to be vehemently resisted to protect the independence of the Institution.

As a result of the acts of the lawyers and the judges, the political parties are having a hay day and have got an opportunity to denigrate the institution that has often stood in their way. Some are trying to get favourable orders in inconvenient cases and some are trying to intimidate Benches in the Supreme Court. The representatives of political parties and senior bureaucrats of PMO now don’t hesitate before paying a visit to the senior judges of the Supreme Court. Judiciary is no more insulated from the executive and the legislature as it ought to be.

But notwithstanding the aforesaid facts and the blame being attributable to the Chief Justice, the present initiation of impeachment proceedings by some political parties in the Rajya Sabha is an absolute retrograde step aimed at curtailing judicial independence and to terrorise the judges from passing unfavourable orders. Irrespective of the motive of the Congress party (and some other parties in Opposition), i.e whether they have adopted this tactic to prevent the Bench from hearing Ayodhya issue or to malign the BJP or to make political capital out of the mess in the Supreme Court, allowing an impeachment motion on such frivolous grounds would sound the death knell of judiciary as an institution. Never in history of our democracy, has impeachment proceedings been used as a tool to bring judges to heel or to dissuade them from taking up sensitive matters. This is absolutely unwarranted and has to be withdrawn forthwith. Notwithstanding the fact that the impeachment motion has been rejected by the Vice President, it sets a dangerous precedent for the future, regardless of the person manning the institution.

In that view of the matter, I would make the following humble suggestions for the restoration of the pristine glory of the Supreme Court:

• The impeachment proceedings should not be pursued, especially now that the Vice President has rightly rejected the motion. There is no proven misbehaviour or misdemeanour which warrants impeachment of the CJI.
• All Judges of Supreme Court should together in full court and decide the manner in which Benches are to be constituted and matters to be allotted;
• All posts in the Supreme Court and High Courts should be filled up within a time frame after addressing the genuine concerns of the executive, if any;
• The CJI should recuse himself from all matters concerning the ruling party and its functionaries. It is in his own interest as well as in the interest of institution.
• Benches should be reconstituted every three months and there should be circulation of the roster among the judges;
• Matters with perceived importance and priority should be allotted to senior judges apart from the CJI.

I hope and pray that the venerated institution, which is mired with controversies, speculation and canards, can recover from the blows suffered by it. Ultimately the institution which we love and adore, is more than a building of brick and mortar, its soul lies in the constitution and its majesty in the respect of the citizens of this country. Unless urgent steps are taken its core will wither away and it will drag into the mud, becoming a lifeless body of ridicule and shame. It will become an institution where even angels would fear to tread. After all, at the end of the day, all of us, whether we be judges, lawyers, litigants or an ordinary citizen of India are bound by the command “Ne Vile Fano” meaning “Do not defile the Temple of Justice”.

The views expressed in the article are solely those of the author and in no way reflect that of www.odishasuntimes.com.

(SK Padhi is a senior lawyer at Orissa High Court. He can be contacted at 9437022242)