The developments at the Supreme Court of India are at best regrettable. Irrespective of the side one is supporting, each one of us will have to agree that the prestige of Indian Judiciary has taken a hit due to the whole development.
The most disturbing consequence of this is that it may have long-term ramifications on the judicial discipline in practice in our country. All other courts in the country are junior to the Supreme Court of India and are constitutionally bound to follow the precedents set by the apex court.
It is explicit in the Constitution that the judgments pronounced by the apex court are binding on all lower courts, which also then becomes the law of the land. The precedents of judicial practices and conduct are also implicitly part of the precedent set by the Supreme Court. Therefore, any development in the Supreme Court, positive or negative, is bound to affect the overall health of the judicial system in the country.
For instance, the practice adopted by the Chief Justice of India (CJI) of assigning individual cases to specific benches has indeed set a wrong precedent. By virtue of being the master of the roster, the CJI could have only decided the subject matter of the benches and the composition of the benches, but not individual cases.
The subject matter here means that the CJI can decide that 'Judge A' will hear criminal cases, this doesn't entail assigning of specific cases. This can be followed by the chief justices of high courts and they can cite the precedent of the CJI doing it in the first place.
Also, the four judges coming out in the open in front of the media has also set a wrong precedent, even though we can empathise with their cause. The lower courts can follow suit. Any judge in a high court can hold a press conference against the respective chief justice. Similarly, any magistrate can hold a press conference against the district judge, citing the precedent set by the Supreme Court. This has indeed opened a Pandora's box.
It needs to be impressed here that the Judiciary functions in a very different way than the other two organs of the government – the Executive and the Legislature. In Judiciary's functioning, there are also rules and laws which are followed without being written. It is because we have chosen to follow the common law tradition of our former colonial masters – the British.
In globally recognised best judicial practices, ethics and integrity form an inseparable part of the character of a judge. The United Nations has come out with Bangalore Principles of Judicial Conduct, 2002, which recognises the values essential for good judicial conduct. The value which is stressed the most is propriety. It elaborates that not just the presence of propriety but even appearance of it is essential.
It is to be noted that the character and personality of a judge need to be very different from that of a politician. The standards of integrity are much higher and even the slightest of impropriety can jeopardise the reputation of a judge. Ideally, the judges in common law traditions are even forbidden to attend any sort of social gathering, for it will impact the judge's impartiality in a case which may come up in front of them involving such people the judge may have socialised with. Therefore, holding a press conference is almost unimaginable.
It is common for a politician to face allegations and then return some to his other colleagues, but it is not so for judges. Hence, the development in the Supreme Court needs to be contextualised in such best practices. The court needs to set straight the strains that have now come up. It needs to pass orders specifically stating that these don't form part of the precedent of the court. We can hope that a full court sits and reinstates the dignity and respect the court still commands in the heart of a common Indian.
The author is a research fellow with the department of humanities and social sciences, IIT Bombay, Mumbai. He can be reached at email@example.com, Twitter: @raghavwrong
Published Date: Jan 15, 2018 15:19 PM | Updated Date: Jan 15, 2018 15:43 PM