Supreme Court judges vs CJI: Judges speaking out at press conference low point in constitutional history

The Supreme Court of India is the only government organ which functions more on the basis of propriety and ethics rather than just legality. A consistent departure from these culminated into four senior judges ultimately resorting to a press conference — a first in the entire history of the Supreme Court.

We may not realise it, but this moment will go down as low point, in the annals of our constitutional history, which most of us being part of legal academia, read with great sense of pride and reverence. Only twice before has such a moment come in the history of our Supreme Court. First, when Justice Ray was appointed superseding three other senior judges and second, when Justice Beg was appointed superseding Justice HR Khanna.

Even in those times, the sanctity of the court didn’t come into jeopardy, in the same sense as it is now, because those events were the doings of the executive of that day, run by Indira Gandhi. The crisis today is the manifestation of the inbred problem within the apex court.

There are certainly problematic developments in the matters of allocation of matters to different benches. Justice AM Khanwilkar, for instance, was a part of the bench which adjudicated upon Kamini Jaiswal vs Union of India. He was also a part of the bench which adjudicated upon the Medical College case, which was at the centre of the controversy and was being dealt in Kamini Jaiswal’s case. Justice Khanwilkar, quite literally, gave himself a clean chit.

It has been established through a long history of practices and customs of the court, that all the judges of the Supreme Court are equal in rank and the Chief Justice is just the first among equals. The fact that four senior judges had to hold a press conference and tell this, is indeed reflective of a sad state of the functioning of the court.

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The Supreme Court through one of its benches headed by Justice Markandey Katju, once remarked on the developments in the Allahabad High Court, that there is something rotten in Allahabad High Court. Perhaps time has come to a full circle, and there is something rotten in the Supreme Court today.

Thomas Fuller, a 17th century British philosopher, and a respected jurist once remarked, “Be you ever so high, law is above you.” Principles like this form the basis of the ‘rule of law’ edifice that exists in all liberal democracy and to an even greater extent in the Indian polity. Indian constitutional history is replete with instances where the primacy of the rule of law has superseded the interests of anyone else.

The developments of today also need to be contextualised in our post-independence constitutional history. In the 1970s, the Supreme Court adjudicated the most famous case in its history — His Holiness Kesavananda Bharati vs. State of Kerala. The Supreme Court propounded the basic structure doctrine against the amending power of the Parliament. It held that even the Parliament cannot amend the parts of the Constitution which form the basic structure of the Constitution.

Interestingly, the Court didn’t define what parts will comprise the basic structure, which was left for the court itself to decide in future cases. Therefore, this doctrine of ‘constitutional supremacy’, became a doctrine of ‘judicial supremacy’ and the court could block any amendment by the Parliament because it was supposedly against the basic structure.

The Supreme Court in late 80s and in early 90s adjudicated upon three cases, which later became famous as the judges transfer cases. The combined effect of the judgements effectively was an amendment of the Constitution and emergence of an extra constitutional body known as the collegium. This advent of the collegium headed by the Chief Justice of India (CJI), was certainly a consequence of extreme repression of the judiciary in the bygone era, especially by Indira Gandhi. The judiciary became insecure, and the workings of the collegium remain opaque till today.

The judiciary gradually evolved, but the court always guarded its independence fiercely. Probably in such a zeal, the rule of law sometimes became jeopardised. Most recently, when the Supreme Court appointed the Lokpal in Uttar Pradesh, this was a totally executive function being performed by the judicial organ of the government.

The court has become the most powerful apex court in any jurisdiction across the world, by the fact that it appoints its judges itself. Too much power often leads to arbitrariness and perhaps what we are witnessing today is a manifestation of that. It is high time that reformative measures like the enactment of NJAC be welcomed by the court itself. This would restore to the court the respect it used to command.

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