It is the nature of big moment that when we are in the middle of it, it seems like nothing would be the same again. That kind of a big moment happened to the Supreme Court of India on 12 January.
Monday marked one month after the unprecedented mutinous press conference by four of India's senior-most judges against the Chief Justice of India. But in spite of all the gloom and doom death-of-democracy headlines of the day and the dark commentary that followed – and died all too quickly — everything is still the same. And the media got busy with Padmaavats, Surpanakas and Rashtriya Swayam Soldiers, that it did not even mark the monthly milestone.
So the question arises, why is an explosion of the highest intensity in the Supreme Court not even a blip on the nation’s conscience just one month on? We have had the odd passing, silly suggestion of impeachment of Chief Justice Dipak Misra but will have to settle for the fig leaf he has offered in the form of making the Supreme Court roster public.
Why has nothing changed? Was the revolt of four senior-most judges supposed to achieve only a consolation win that does not even amount to an ego massage?
The answer to that last question is, regrettably, in the affirmative. Expect nothing to change. Instead, change what you expect. In so reorienting your mind, don’t park the blame for this at Chief Justice of India (CJI) Dipak Misra’s door.
This has got less to do with how one chief justice is running the court and more to do with how the Supreme Court has evolved as an opaque institution of absolute and unbridled authority in the last three decades giving unto itself, incrementally but purposefully, powers that tilted the balance of power between the three pillars of democracy.
I am not for a moment saying that what happened on 12 January was not earth-shattering. It was. Justices Jasti Chelameshwar, Ranjan Gogoi, Madan Lokur and Kurian Joseph told a stunned nation that they were bringing the issue into public domain to “let the nation decide” on how it could “take care of the institution”. (Check out this video from timeline 2:40 to 3.11 and from 6.35 to 6.45).
That made one wonder if this was a press conference by Supreme Court justices or Arnab Goswami’s prime time show; this might sound funny, but I say it in all seriousness: For some years this fake judge has been behaving like the real one invoking “the nation wants to know” / “the nation will decide” bramhastra. For four real judges -- of the Supreme Court of India, no less -- to speak the language of prime time anchors is cataclysmic. What role did the “nation” have in this judicial squabble? Dyed in wool jurists all, they would have known that the “nation” could do nothing more than be a helpless spectator. So, knowing that if they made a spectacle of themselves and the Supreme Court, they must have wanted to put out something very important out there in public sphere.
Sadly, they didn’t.
Among other reasons they cited for their public exhibition of rebellion against the chief justice was that he was acting like the chief. Yes, that was their most serious charge. Read it in their own words: “One of the well-settled principles is that the chief justice is the master of the roster…The convention of recognising the privilege of the chief justice… is a convention… 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 amongst the equals — nothing more or nothing less.” (Excerpted from their letter to the CJI)
Their point was stark. The Chief Justice of India was just a designation. It did not matter that they did not carry the designation and only Dipak Misra did. They were all equal. Justice Misra had no business bandying it about like he was special. The designation was “not a recognition of any superior authority, legal or factual, of the chief justice over his colleagues”. In effect, they were saying he was just one of them, one of the 25 judges of the court.
At the level of common sense, this concept of “first among equals” is tough to explain and at the level of functionality impossible to implement. It is an intellectual construct handed down by the British to us and makes little sense. If we were indeed to apply the norm of “equal judges” strictly, such equality cannot then be restricted to the CJI plus four senior-most judges as the rebel judges seem to suggest. That “equality” will have to be extended to every single judge of the court. Imagine the Supreme Court of India being run every day by 31 “equal judges” (that is the sanctioned strength of the Supreme Court judges; there are six vacancies now). What a royal mess it would be. We can expect something like one press conference per day every day of the month.
Which organisation, institution, business, industry regulator, law firm, office, political party, charity, think tank, sport, start-up or even a chai or pakora stall is run by a clutch of equals, functionally? Even in a general partnership law firm, for instance, while all partners have equal stake in profit and loss, a clear delineation of functional responsibilities is critical. Similarly in any team sport. Though all players have equal responsibility in that they are all expected to contribute to the best of their ability to win, the captain is the one who calls the shots.
That is why we call Virat Kohli the captain of the Indian cricket team and not “first among 11 equal cricketers representing India”. As a player with a Grade A contract with the BCCI, he gets paid only as much as the other Grade A players. But his writ runs on the field and and off it. No other player, not even Grade A, can claim equal status, power and privilege. They share a grade with Kohli, not his designation.
This difference between grade and designation will be immediately clear to government officers and professionals. Grade is for pay and perks. Designation is for power, privilege and accountability. For example, every state will have a bunch of senior IPS officers “of the rank of director general”, but only one designated director general of police (DGP) for the entire state. The other DGs (police housing, training, etc) are right to feel “equal” to the DGP but have to defer to the DGP in matters of police administration.
Commonsensically and functionally “first among equals” is a dud. But the four honourable judges did not cite common sense, they cited the law (they said the CJI was not their superior, neither legally nor factually). First up, it is right to say that a large part of running the Supreme Court has evolved by convention built upon the basis provided by the Constitution. If the claim is that the CJI is bound by the “first among equals” convention and has no legal or factual basis to claim any “superior authority over his colleagues” it becomes necessary to test the “first among equals” theory against the law as well. Does “first among equals” have a legal basis? Or any basis other than convention?
The answer is easily found in Articles 124 to 147 of the Constitution dealing with the establishment and constitution of the Supreme Court. These are the first words of Part IV of the Constitution (The Union Judiciary): “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.” [Art 124 (1)]."
Right at the beginning, the Constitution draws a distinction between the CJI and other judges. That distinction is maintained througout the 24 Articles that concern the Supreme Court. Article 124 (2) lays down the procedure for the appointment of Supreme Court judges. The President of India shall appoint a Supreme Court judge “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary” but “the Chief Justice of India shall always be consulted (emphasis added on both occasions)". The distinction is clear: The President can pick and choose which judges he wants to consult, but has to always consult the Chief Justice.
Article 128 authorises the CJI to request any retired Supreme Court judge or “any person” who fulfils the qualifications for appointment as Supreme Court judge to “sit and act as a judge of the Supreme Court”. Though the Supreme Court is ordinarily seated in Delhi, Article 130 empowers the CJI to decide to seat the court in any other city. Article 146 (1) mandates that the CJI shall appoint “officers and servants of the SC” or authorise “such other judge or officer of the court as he may direct”. Not only does he have the power to appoint these officers, but he can delegate it to any judge – not necessarily the senior-most – or even an officer of the court – not necessarily even a judge.
The Constitution is replete with such instances of treating the CJI, functionally at least, as above the rest of the judges. It does not once hint - leave alone about prescribe - the theory of “first among equals”, save in Article 126. This Article, which deals with the appointment of acting CJI, says: “When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.”
This is telling. It endorses the concept of equivalance but in the manner opposite to what the four rebel judges have argued. The President can appoint any one of the other judges as acting CJI, not just the senior-most judge. Without referring to the concept of equivalance, it “equals” all judges other than the CJI. The fact that the CJI has a special place, a higher perch if you may, than the other judges is underscored elsewhere in the Constitution, too. It mandates that when the post of the President and the Vice-President of the country are vacant concurrently or they are both unable to serve for whatever reason, it is the CJI who takes over the reins as Acting President. (This has happened only once.)
Note that it is not just any other judge, it is just the CJI.
In qualifications, intellect and stature (how we look after them and look up to them) the concept of first among equals is well appreciated. For a job as critical as the judge of the nation’s top court, we cannot have anyone who is less qualified than the others (or the CJI for that matter) or is not of the intellect that would measure up to their high standing in soceity. But first among equals was never a code of the Constitution, only a convention. If, as the rebel judges pointed out, the privileges of the CJI are just a convention and not his legal superior authority over his colleagues, the converse argument must hold equally true. If convention is the only tenet on which the judges claim equality of status with the CJI, it can be argued that there is no legal backing to their claim either. Law is the foundation, convention is only the superstructure that cannot replace the former.
This is implicit in the rebel judges’ argument itself. For the last time in this article let’s re-examine this statement: “The convention of recognising the privilege of the chief justice… is a convention… but not a recognition of any superior authority, legal or factual, of the chief justice over his colleagues.” After building their case on how the Supreme Court is a creature of convention and why convention should be revered, they knock the bottom out of their own argument by implying that it is just a convention and not a legal or factual position. Meaning that the conventional is subservient to the legal, as indeed it should be.
The legal and factual position, as I have pointed out citing various Articles of the Constitution, is that the CJI is a perch above the other judges. Admittedly, the Constitution does not say so explicitly as in the case of the Prime Minister ("There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President…Article 74 (1)"). But the implicit meaning of a reading of the Articles is unmistakeable: the CJI is the boss.
If that is not the case, why do we call the person the Chief Justice and not “one of the 25 equal judges of the Supreme Court of India”? Conversely, if all judges are equal, why do only five senior-most judges form the collegium for appointing judges? The answer to the second question is simple: for operational convenience. Which is also the reason why the Supreme Court, like any other institution, needs a chief who is nobody’s functional equivalent.
That is why dramatic and unprecedented as the press conference was, it was not going to significantly change the way the Supreme Court functions. We are none the wiser if democracy is any better off today than on 12 January. The top judiciary has retreated behind that opaque wall of privilege into familiar radio silence. There it will stay, ring-fenced from any and all oversight from any other organ of democracy even as it judges all others. And that is a tragedy bigger than 12 January. It is not of Justice Misra's making. It has been building up over the last three decades. And every top judicial officer, past and present, is responsible for arrogating to themselves qualities of invincibility that the Constitution never intended granting. To the "nation" — and the democracy that the judges wanted to pay their debt to — that is of bigger concern than which judge gets to sit on which matter. But that is a debate for another day.
Published Date: Feb 13, 2018 13:50 PM | Updated Date: Feb 13, 2018 15:11 PM