Article 124 (1) of the Constitution of India declares that, “There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.” [Which number has been increased to 30 vide Supreme Court (Number of Judges) Amendment Act, 2008]
In 1950, the Supreme Court in Bharat Bank Ltd. v. Employees declared, “In other words, the foundations of this republic have been laid on the bedrock of justice. To safeguard these foundations so that they may not be undermined by injustice occurring anywhere this Court has been constituted.”
Constitution is the suprema lex for this country. In Kesavananda Bharati v State of Kerala, it was held that supremacy of the Constitution is amongst the basic features of the Constitution of India. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers.
In a recent order in the matter of Campaign for Judicial Accountability and Reforms v Union of India and another, five Judges Bench held that, “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand (supra), it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand (supra), the Chief Justice is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.”
Even though empowered with the order dated November 10, 2017, does the Chief Justice of India possess absolute, unguided and arbitrary administrative powers to “constitute the Benches of the Court and allocate cases to the Benches so constituted”? Of course not. He is as much bound by the Rule of Law as anybody else while exercising administrative powers under the Constitutional scheme. There can be no doubt about it as per jurisprudence available on the subject. If there is one principle which is firmly rooted in our Constitutionalism it is, “Be you ever so high, law is above you.” This principle originally spoken by Thomas Fuller, a Seventeenth Century English churchman and historian, has been repeatedly emphasised by the Supreme Court in its judgments. Thus, the Chief Justice is also bound by the Law.
Rule of Law is one of the basic principles of the Constitution. The Rule of Law implies the banning of “Rule of Jungle” in matters pertaining to a person or a Nation. The doctrine of Rule of Law is an effective and powerful weapon in keeping and confining administrative discretion in check. It serves as a touchstone to test all administrative actions.
Justice H R Khanna, the great Judge, observed in a courageous dissent in ADM, Jabalpur v. Shivakant Shukla, “Rule of law is the antithesis of arbitrariness. [It is accepted in all civilized societies.. it has come to be regarded as a mark of free society… it seeks to maintain a balance between the opposing notions of individual liberty and public order.]” He warned, “Absence of Rule of Law would nevertheless be absence of Rule of law even though it is brought about by a law to repeal all laws.”
Yet, little insight into the functioning of today’s Supreme Court will reveal that the Chief Justice has been exercising powers in a completely opaque and unfathomable manner.
Several instances in recent months reflect that the Constitution Benches are constituted by including only certain Judges and excluding therefrom certain other Judges.
Now there can be no doubt that every Judge of the Supreme Court is a Judge within the meaning of Article 124 and stands on the same footing with others. There cannot even be any doubt on individual’s selection. It is not my endeavour to criticise or attack any individual Judge. But the fact remains that senior Judges and even Judges who are known for their proficiency in certain branches of law are excluded from such Benches. The Five Judge Bench which passed the order of November 10, 2017, was constituted by the Chief Justice ignoring senior most Judges being J2, J3, J4, J5, J7, J9, J11, J13, J14 and J15. Even assuming that the Chief Justice felt that the Bench of Justice Chelameswar and Justice Nazeer could not have passed a judicial order referring the Writ Petition in question to a Bench comprising of first five Judges in the order of seniority, Chief Justice should himself constituted Bench of the same Judges. The order passed by the Bench presided by the Chief Justice eloquently speaks about, “judicial discipline and decorum” and “convention” followed by the Court.
If in the case relating to Justice Karnan, seven senior most Judges presided the Bench, it should have been done so in the very Writ Petition in which the order of November 10, 2017, was passed.
Case of the matter of Justice KS Puttaswamy (Retd.) and another v Union of India, popularly known as the Aadhaar matter is more curious. This Writ Petition was extensively heard by various Benches of which Justice Chelameswar and Justice Bobde were members along with other Judges right from 2013. In fact, on August 11, 2015, Bench comprising of Justice Chelameswar, Justice Bobde and Justice Nagappan directed that the matter be referred to a larger Bench. Chief Justice Khehar very correctly reconstituted the Bench on 18th July, 2017 which comprised of himself, Justice Chelameswar, Justice Bobde, Justice Chandrachud and Justice Nazeer, which then referred the question whether privacy is a fundamental right to a larger Bench of 9 Judges. This larger Bench also comprised of, amongst others, Justice Chelameswar, Justice Bobde and Justice Nazeer. The privacy matter was decided on August 24, 2017, and at least one of the Judges, Justice Nariman, at the end of his judgment directed that the matters be sent back for adjudication on merits to the original Bench of 3 Judges in light of the judgment. It is a matter of record that the Aadhaar matter was not being fixed for hearing which led to repeated mentioning by Shyam Diwan, Senior Advocate, spearheading the arguments on behalf of the Petitioners, before Chief Justice Misra who ultimately constituted a 5 Judge Bench as suggested by the Learned Attorney General but excluded most of those Judges. The Bench now constituted comprises of Chief Justice Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Bhushan.
It is a matter of practice that Benches are constituted by the Chief Justice considering the previous orders and it is rare to exclude from reconstituted benches the Judges who had heard the matter earlier and are still available.
There has been a convention or a pattern which one has observed in the Supreme Court that major river water disputes are heard by Benches which do not comprise of Judges from the concerned States. Why should this convention not be extended to politically sensitive and serious matters coming from various States so as to exclude the Judges from those States from hearing such cases. After all justice must not only be done but must appear to be done. This principle has been reiterated by the Supreme Court itself. Also, judgments by the Supreme Court will have greater acceptability with the constitution of correct Benches.
This does not end here.
Recent trend shows that the Chief Justice who has powers to allocate cases appears to be doing so on selective basis.
Again, it is not my endeavour to criticize the outcomes or judgments given in such cases. But the manner of allocation raises serious issues about the Independence of Judiciary. For example, recent matter challenging the appointment of Additional Director of CBI was placed before the Bench of Justice Ranjan Gogoi and Justice Navin Sinha, but the same was released by an order to the following effect, “List the matter on Friday i.e. 17th November, 2017 before a Bench without Hon’ble Justice Navin Sinha.” The matter was later listed on November 17, 2017, before a bench presided by Justice RK Agrawal although on that very day Justice Ranjan Gogoi was sitting not with Justice Navin Sinha but with Justice RF Nariman and Justice Sanjay Kishan Kaul. The matter ought to have been placed before that Bench. The outcome could have been the same. But again this raises a very serious issue. There appears to be a pattern in distribution of such cases. There are many such examples which can be traced with careful examination.
Matters involving Constitutional Authorities and certain issues relevant to political spectrum are being marked to certain Benches, the record shows.
Unfortunately, this has been going on in the Supreme Court unchecked and uncommented for some time. Chief Justice Khehar allocated the Birla Sahara matter to a Bench presided by Justice Arun Mishra and Justice Amitava Roy overlooking 10 Senior Benches. Similarly Chief Justice Khehar, after converting an administrative letter by the widow of Kalikho Pul into a petition, allocated the same to the Bench of Justice Goel and Justice Lalit, who were sitting in Court No. 13, overlooking Court Numbers 2 to 12 for no reason.
What then is the purpose of subject wise allocation of work to Benches and computerized allocation of matters? What can be, if at all, the justification for this? Does the Chief Justice not trust all his esteemed colleagues? Does he feel some are more competent than other? Or does he feel some are so independent that matters of political sensitivity should not be send to them? One is left only to guess.
Independent and strong Judiciary is the basic feature of the Constitution. Judges have a bounden duty to ensure that it remains so. We are faced with an extraordinary situation where Judiciary is being marginalized from within and not from outside. This will inflict deep scars on the Institution of judiciary. It is important for this Institution to ensure that an impression is not given to public at large that constitution of Benches and allocation of matters are being administratively done in a manner more palatable to the Executive whose major actions and decisions are being tested on the touchstone of constitutionality every day. Government is the single biggest litigant before the Supreme Court of India. Citizens are entitled to expect free and fair administration of justice. The warning expressed by Dr. BR Ambedkar on May 24, 1949, before the Constituent Assembly appears to have been justified when he said, though on a different issue, “I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have…”
But if he doesn’t, for reasons which are unknown, the other Judges must step in and retrieve the situation. After all, Independence of Judiciary is the collective responsibility of all the Judges and they cannot refuse to act under the specious argument that the constitution of benches and allocation of cases is the prerogative of the Chief Justice alone. Let us hope and trust that they will act to uphold the supremacy of the Constitution and the Rule of Law.
Bar also has an equal responsibility and must act, especially to correct the stand taken in Campaign for Judicial Accountability & Reform and Kamini Jaiswal cases. Let us hope the new leadership of Bar takes an independent stand.
One must remember that in Supreme Court Advocates on Record Association v Union of India, the Second Judges Appointment Case, the Court has decided that opinion of the Chief Justice of India in appointments and transfers “is not merely his individual opinion but an opinion formed collectively by a body of men at the Apex level in the Judiciary” and has laid down that the Chief Justice must consult senior Judges, thus paving way for the Collegium system. Perhaps this could be the way forward to tackle with the present problem.
Time has come to remind us as was said by the Law Commission in its 14th Report and approved by this Court in All India Judges’ Assn. (I) v. Union of India in 1992 that, “If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.”
Dushyant Dave is a Senior Advocate and Former President of the Supreme Court Bar Association.
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