Opacity in the management of the judiciary, and particularly, in matters of appointment and allocation of cases before the Supreme Court of India is the precept of the principle of judicial independence as propounded by the Court in the Second Judges Case. The court essentially limited the role of the executive in the manner of appointment of judges to the Supreme Court, and therefore, by extension, the Chief Justice of India. The principle behind this was that without the senior-most judges retaining total control on such matters, they would be subject to political games. But nothing is devoid of its own politics, and today what we see is that the politics of the Supreme Court is as much a matter of public interest (and not merely nosy curiosity), and hence must be trammeled as much as the discretionary powers of politicians and bureaucrats.
It is this very opacity which justifies the collegium system established extraordinarily by the Supreme Court in its 1993 judgment. We are today faced by a situation where this opacity has adversely affected, in the eyes of four of the senior-most judges of the land (excluding the CJI, of course!), the proper functioning of the court in terms of the dischage of the administrative functions of the CJI. It is therefore quite consistent with the events of the day that Justice J Chelameswar was the only dissenting judge in the NJAC Judgment – a judgment that reinforced the idea of opacity. What he and his brother judges complain of is that the current Chief Justice of India has, as the Master of Roster (a phrase that common people have had to recently acquaint themselves with), extended this principle of opacity and used it to protect what he feels is solely the turf of his office. And this, Justice Chelameswar and his brother judges find to be impermissible, a threat to the institution itself. Opacity has thus extended to internal workings – the general principle, it would thus appear, has by its own application defeated its purpose.
But it is in the extraordinary step of calling a press conference that one feels that irreparable and irreversible damage has been done to the principle of opacity. It is thankfully so, in the view of this author. After exposing the inner workings of the Supreme Court through the media, it would be hypocritical for Justice Chelameswar’s group to claim that the solution is merely to correct the ways of a seemingly errant CJI and to return to matters as they were. Just as Pandora could not put the lid back on her box, it ought to be apparent to all watchers that the Supreme Court cannot shut the door on an interested public again.
Those who have never litigated before the Court would not have imagined that bench allocation can be cause for such acrimony. Those who feel that they were unjustly dealt with by the court in the past will wonder if things would have been different if another bench had heard their case. And therein lies the permanence of the damage to the court’s credibility. Things simply ought not to be the same again.
The author is a practising advocate before various courts in Delhi, including the Supreme Court. He tweets @TweetinderKaul.
Published Date: Jan 12, 2018 20:50 PM | Updated Date: Jan 12, 2018 21:23 PM