Supreme Court judges' revolt: Hard-hitting questions for Indian judiciary

When four of the senior-most judges of the Supreme Court decide to hold a press conference to discuss internal disagreements, as they did on the morning of January 12, one knows it was not an easy decision to make. One hopes that it was made under advisement and not carelessly or hurriedly. And one wonders how a schism of this magnitude can heal itself, without the independence of the institution being compromised, and in the absence of any rules or conventions to address factionalism in a collegium.

The need for transparency in the functioning of the higher judiciary cannot be emphasised enough. The institution, while entirely unelected, wields a disproportionate amount of power. Constitutional amendments carrying the approval of Parliament and a majority of the state legislatures can turn to dust in the Supreme Court. Additionally, its members are (almost) uniquely difficult to remove from their posts; the process of impeachment being complicated, time-consuming and highly political.

The press conference held at justice J Chelameswar’s house brought to the fore certain questions about the judiciary’s relationship with transparency in its functioning.

First, why are there no internal safeguards to deal with administrative issues in the functioning of the Supreme Court? The fact that discussions among the five senior-most judges repeatedly failed, and that a press conference was held out of frustration rather than convention, highlights a lack of structure in the administrative functioning of the Supreme Court.

It seems as though there are no intermediate steps to settle administrative or even disciplinary issues in our multi-tiered judiciary.

In the higher judiciary, transfers on disciplinary grounds are not common and, naturally, at the Supreme Court, this is not an option. The remote threat of impeachment is the only way to correct or direct judicial conduct. However, impeaching proceedings cannot be instituted by other judges of the Supreme Court and can hardly be termed as remedial in nature.  

For an institution considered to be self-governing and supreme, we find that, in situations of internal conflict, there is no structure for internal solutions, and recourse to the media and, possibly, political bodies becomes inevitable.

Second, how do we trust that other decisions of this collegium have been made on objective grounds? The Supreme Court has 25 judges currently. Two appointments have already been made by this very collegium, announced this past week, and more appointments may well follow here and for the High Courts.

In the absence of a truly transparent appointment process, we cannot be certain that voting will not take place according to other prejudices and that the voting pattern won’t reflect other divisions.

This is not to question the integrity of the four judges at the press conference (who constitute a majority of the collegium), but rather to say that dangerous conclusions are left to be drawn in the absence of public information available about the functioning of the collegium.

And third, will we only see transparency in times of dissent? Is the judiciary picking and choosing when to be transparent? There must be transparency in administrative functioning of the Supreme Court, including in issues of allocation of matters to certain benches. This transparency should not be brought in only when there is a disagreement among the judges - it makes it akin to a kind of whistle-blowing, wholly dependent on the conscience and state of mind of the whistle-blower.

This is not to say that there was no good reason to address the public about the deadlock in administrative functioning in the Supreme Court.

For a body like the judiciary and the role it plays in our democracy, a show of transparency cannot and should not be sporadic. It should not open itself up to allegations of being motivated.

Any efforts made at introducing transparency should be capable of serving as lasting precedents.

Also read: Why top four SC judges claim judiciary and democracy in India are in danger