India cannot afford a lesser respected Supreme Court
We have always prided ourselves on having the most powerful institution in India - the judiciary - to act as a bulwark against the other two pillars of our democracy - the legislature and the executive.
While, we the people are reconciled to falling standards of the other two pillars, we felt comforted that the Supreme Court was there to function as a moral compass to charter the vessel of political India in the wobbly waters.
There is near unanimity that with the other two institutions repeatedly yielding space, the apex court was there to fill the void. Even when the Supreme Court invented the collegium in the Second Judges Case and then let it stay by consigning the National Judicial Appointments Commission Act, to history, as unconstitutional, it was acquiesced in.
In no other polity, we have the spectacle of judges appointing themselves to the higher courts. All this and more, the apex court has been able to accomplish without any moral or legal demur. It is the fallen standards of the other two estates that has enabled this scenario. That, dear reader, was the prime reason that despite a sure and certain judicial overreach, beyond all known cannons of jurisprudence across continents in a democratic polity, the citizen was not unduly worried when politicos complained of "unelected tyranny" from the top court.
But, of late, we have more than anecdotal evidence of the constitutional court/s on a downward spiral, which is terribly worrisome. Judges may come. Judges may go. The institution goes on forever and it alone matters. Lying at the core of this precept and practice, is institutional integrity and judicial discipline. If these faculties are frayed even at the edges - the confidence of the citizen in the institution is shattered, and that bodes ill for our democratic and republican ethos. And, if it impacts not the edges but the very core, then it is a wake-up call.
We had the spectacle of a "leaked" verdict on the day of retirement of the late chief justice Altamas Kabir in the infamous NEET verdict. Though the damaging order was reversed, on review, damage to the institution was never undone. The incoming chief justice P Sathasivam promised inquiry and 'action", and it has all remained under wraps, eating into the nobility of the institution till date.
Then, one is reminded of the imbroglio involving a sitting judge of the Madras High Court, which after a continuing saga of not-so-healthy developments - landed in the lap of a bench of seven judges led by the then chief justice JS Khehar himself.
Initiating contempt action suo motu, the court directed incarceration for six months of a sitting high court judge - unheard of across any free judicial domain - and sadly the contemnor is still serving term, when we are now witness to possibly the most unprecedented judicial transgressions and equally stunning corrective measures.
Incidentally, justice J Chelameswar was himself a party to the seven-judge bench order that restored the primacy of the chief justice of Madras High Court in the matter of roster control.
The judiciary represents, academically the bar and bench. Both the bar and bench have not cornered themselves with glory in this episode. Justice Chelameswar - of the "principled dissent" fame in the National Judicial Appointments Commission judgment - followed by his recusal from collegium proceedings- confirming the best kept secret of opaqueness in deliberations and decisions - has suffered a huge dent from his halcyon days, by ordering the constitution of a larger bench of five of the senior most judges to hear the challenge from an NGO that a special investigation team be constituted to go into the FIR filed by the CBI against a retired judge of Orissa High Court, and suggesting that the chief justice of India was an "accused" by implication, as he was handling the litigation relating to medical college seats.
Justice Chelameswar, sitting with a brother judge, arrogated to himself the power of chief justice, for in the present roll call of seniority, he may not become one, it seems, by directing constitution of a five-judge bench to hear the petition.
It is a settled law that while the chief justice was the first among equals, he was still the master of the roster in the allotment of portfolios and cases to his brother judges. In a telling blow to the rule of law, senior advocates, who were well aware of these principles, obtained an order slighting the office of the chief justice in a direct assault on the institution. Most unbecoming of senior members of the bar.
The confrontational attitude adopted by well-informed advocates to tap into possible cleavage in the views of the senior judges, makes sad viewing, reading and experience. In a fast and furious response, another bench of justice AK Sikri refused to toe the line of justice Chelameswar bench, in the second case of same genre and opening the genie for a reference to a constitution bench of seven judges, and within minutes altered as five judges.
During the hearing, a hot under the collar senior advocate Prashant Bhushan - after a loud - near loud-mouthed- exchange chose to walk out of the court hall of the chief justice. Most unfair and shameful episode epitomising the institutional damage that is coming from within the institution itself. A sad and shocking spectacle of immense proportions, never before enacted.
In fact, reports suggest that the Supreme Court Bar Association members and office-bearers were present in good number, questioning the conduct of Bhushan, who refused to budge and in the face of an unyielding bench - he did a walk out, which surely was not a principled one and did not add to the majesty of the institution.
Surely, he was not setting any moral standards for the younger professionals to emulate. Rather, ironically, he may have been indulging in teaching them the very opposite.
In the meanwhile, the five-judge bench restored the roster power to the chief justice, where it belongs. But it is not an "all is well that ends well" storyline. And to complete the circle, the chief justice has since directed that all "mentioning" shall only be before the first court, presided over by the chief justice, in respect of fresh cases and listing of cases afresh.
The sequenced happenings in the past few years, flagged, are more than anecdotal evidence, symptomatic of a larger malaise. Many more instances could be cited. But quite unnecessary, as the trajectory is obvious, in the latest instance.
It is time for introspection, both the bar and bench to lean on the other, to enhance institutional integrity and judicial discipline, worthy of the institution.
There have been a few eminent voices suggesting that the chief justice of India, Dipak Misra, could have magnanimously allowed the order of justice Chelameswar to stay, even while pointing out the foundational flaw of a second judge usurping the roster right of the chief justice, to demonstrate that the chief had "nothing to hide". That view, though appealing, was not advisable for the chief justice had to restore constitutional dharma of exerting his roster jurisdiction and not allow the hierarchical discipline to be upset.
Even a recusal by the chief justice of India, had to be argued before him, as a matter of judicial protocol. Chief justice Dipak Misra owed it to his office to assert its authority, and not his, in declaring his imprimatur. It was a matter of institutional dharma set right, and individuals mattered little.
The chief justice did well not to gag the press, as urged by some, and made public, what deserves to be in the open. There is no better disinfectant than sunlight.
Hopefully, we can only pray that the can of worms let out in the recent past, would be scorched by the sunlight let loose.
India cannot afford a lesser respected Supreme Court. Would the actors please stand up and realise their responsibilities? The institution deserves better actors and performance.