On the face of it, the rebellion of sorts by the four honourable judges of the Supreme Court concerns procedural issues in the way the Supreme Court has been functioning of late. But one just has to look closely at the reactions of various people, including politicians and legal luminaries, to this unprecedented act by the judges of airing their grievances in an open press conference to realize that shorn of legalese, the battle appears more political than judicial.
On the one side are those who are convinced that the Supreme Court under the present Chief Justice of India (CJI) has surrendered its independence and authority to become a hand maiden of the Narendra Modi dispensation, constituting benches and handing out judgments in politically sensitive cases in a way designed to suit the government. They make light of the serious impropriety in the four judges of the apex court going public with their views that can potentially split the court down the middle. They justify the judges’ decision on the ground that ‘extraordinary situations call for extraordinary responses’, propriety be damned!
On the other are those who condemn the four judges for what they have done maintaining that it constitutes a serious violation of the code of conduct that judges of the higher courts must abide by at all times. In fact, former SC judge Justice RS Sodhi has gone to the extent of calling for the ‘impeachment’ of the four judges for what he has termed their ‘immature’ act. [We must not forget that one of the four judges is slated to succeed to Justice Dipak Mishra as the CJI later this year!] Those who believe it was an act of gross impropriety on their part fully endorse the view that the CJI is the ‘master of the rosters’ and has full authority to constitute a bench as he deems fit. The rebel judges have not helped their cause by meeting some leading political leaders at Justice J Chelameshwar’s residence after the press conference in the full glare of TV cameras, further strengthening the suspicion that there is a political agenda behind what they have done. Not for nothing is it said that judges should be seen and heard only inside the court. In violating this cardinal rule, the four judges have certainly laid themselves open to the charge of acting at the behest or on behalf of a section of the political class.
There is little doubt, however, that the issues the four judges raised at the press conference today – and in the letter to the CJI earlier – are of paramount importance and deserve the urgent attention of the Supreme Court as a whole if its sanctity, independence and authority, which have certainly taken a hit following Friday’s developments, are to be preserved. For a start, the principle of primus inter pares (first among equals), needs to be properly defined to leave no room for doubt on the limits of the CJI’s discretion – and even whether there should be any limit at all. It also needs to be made clear once and for all if the principle of ‘first among equals’ as applicable to the CJI is the same as that enjoyed by a Prime Minister or a Chief Minister who has full powers to appoint or fire a minister and a lot him/her a portfolio. Whatever damage the press conference by the four judges may have done to the majesty of the apex court, it would have served a purpose if it forces the Supreme Court to turn the spotlight inwards and usher in the necessary reforms to lay down the rules of business in a way that would help avert a similar situation in the future.
We the people have always stood behind the judiciary like a rock whenever the executive has made an attempt – sly or otherwise – to undermine its authority because it is the only institution that has, barring a few exceptions, we can trust to curb authoritarian and totalitarian tendencies on the part of the executive, uphold the Rule of Law and preserve democracy. That is the reason we have backed the apex court when it resisted the attempt by the present government to usurp – or at least dilute - the power of the judiciary to appoint judges of the higher courts by throwing out the National Judicial Appointments Commission (NJAC) Act, 2014. It would be a monumental tragedy if today’s unfortunate development, instead of impressing upon the judiciary to get its act together, helps exacerbate the fissures within the highest court in the land.