The Unseemly Spectacle of a Divided Judiciary Was Highly Avoidable

NEW DELHI: Two petitions relying on a FIR that alleged that judges of the Supreme Court may have been approached for favourable orders were filed in the Apex Court.

The petitions prayed for the setting up of a Special Investigation Team headed by a former CJI to look into the matter.

It was also alleged by the Petitioners that the criminal conspiracy claimed in the FIR involved a judgement delivered by the sitting CJI.

One of the two petitions was heard in Court No. 2 of the Supreme Court. Hearing the petition, Court No. 2 immediately passed an order constituting a Constitution Bench consisting of the senior most 5 judges for hearing the petition. There is no doubt that such a petition can be filed and also must be given a hearing by the Highest Court. At the same it is established by a previous Supreme Court Judgement that the Chief Justice is the master of the roster and decides the formation of the Benches of the Court.

The CJI immediately reacted forming a Constitution Bench nullifying Court 2’s order. The CJI order was opposed by the Petitioners as it involved a conflict of interest as the CJI himself was stated to be possibly involved in the conspiracy in question. Eventually a bench of 3 Judges presided by Justice R.K. Agrawal was setup for hearing the matter.

What the above incidents have led to is the unseemly specatacle of a publicly divided judiciary that raises questions on the moral authority, independence and fairness of the Apex Court.

An allegation of corruption cannot be wished away but nor can a charge alone prompt judicial or administrative action that could undermine the credibility of an institution built over seven decades. It would be naïve to believe that the only possible way of dealing with a petition alleging judicial impropriety would involve a public struggle amongst judges of the Highest Court.

What was required was for this matter to be discussed and thought through by the Benches involved in the hearings and thereafter passing of an order that substantively and procedurally fulfilled requirements of justice. It was startling to see the unseemly urgency with which the orders in question were being passed.

The Supreme Court ought to speak in one voice and no judge should value her/his opinion or reputation more than that of the Judiciary.

Dissent in judicial opinion has often been of significant value and as Justice Rohinton Nariman pointed out in the Privacy judgement- the Indian Supreme Court owes much to their intellectual foresight and bravery of dissenters such as Justices Saiyid Fazl Ali, Subba Rao and H. R. Khanna for upholding both the correct doctrinal positions and integrity of the Judiciary.

However it is important not to romanticise the act of dissent but to test such opinion against jurisprudential principles and in the present matter against the values that go into the making of an independent judiciary. The “canons of judicial ethics” issued in its original form by the American Bar Association was issued in 1929 (under chairmanship of Chief Justice William Howard Taft) and has guided federal judges often during the last century. That the 19th cannon titled “judicial opinions” would be of significance in the current debate on a unified court and dissent.

“..It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. A judge should not yield to pride of opinion, or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious differences of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort…”

What is of significance in the paragraph cited above is the recognition of the principle that the integrity of the court has to be collectively upheld. That an allegation of corruption against the highest court must be addressed is beyond dispute. How such a charge is to be taken cognizance of by the Court may lead to differences fundamental in nature. However once the petitions were listed for hearing the matter ought not to have reached such an acrimonious end.

On November 14, 2017, the 3 judge bench setup by the CJI passed an order dismissing the two petitions praying for a SIT.

It may be true that the composition of benches often decide the fate of cases. For instance Justice Sinha and Justice Pasayat (former judges of the Supreme Court) had diametrically opposite views on death penalty often leading to contrary judicial opinions. Similarly in PIL cases the interference of the Court is often dependant on the Judge’s ideological disposition on how the judiciary is to fulfil social justice clauses of the Constitution.

It is fair to critique such orders on legal grounds but one must tread carefully before questioning an order premised on the ethical legitimacy of those who sit on the Bench.

What is also noteworthy to understand is that transparency and independence share a complex relationship and the existence of one does not ensure the existence of the other. The NJAC order when dealing with the uniqueness of judicial independence correctly balanced the two concepts in question. This incident also makes a strong case on why Judges must strictly follow judicial discipline and rectitude (recently expressed by Fali Nariman In the tribune). In an earlier piece (http://www.thecitizen.in/index.php/en/NewsDetail/index/1/5571/The-Judiciary-Saves-Itself-from-Political-Control) I have outlined the circumstances leading to the now famous “Judges cases” and why the coming of the collegium was not a product of judicial whim.

Coming to the Three Judge order passed on 14.11.2017 we can see the anger of the Bench in relation to the manner in which the two petitions were filed.

The Bench held that this was nothing less than forum shopping and had caused great damage to the reputation of the Judiciary. It was held that the litigators trust in the Judiciary was far too important to be lost recklessly over allegations in a FIR which fail to even name the Judge of the Apex Court in question.

Further that the order of the Supreme Court in question regarding a medical institute shows no favour and in fact the decision concerning their letter of permission for 2017-18 is with the Medical Council of India.

Eventually the order dismissed these petitions stating that the manner in which these petitions were pursued did great harm to the judiciary. Now of course, the FIR will be pursued as per our criminal statutory regime and does not bring to an end the investigation into the charges themselves.

Many have argued that these events signal irreconcilable damage to the Judiciary. One would do well to take note of the point that the procedural frameworks guiding appointment of judges and issues regarding conflict of interest seem to be inconsistent.

However we should not forget that the trust in the judiciary stems from the thousands of orders that have not made their way to newspapers but have restored rights and provided justice to peoples of our democracy. It is not to say that judicial populism (often highlighted by the critics of PIL) is to be seen as a virtue which allows one to look away from the institutional and doctrinal failings of the Court.

The judiciary’s contribution to the making of Indian democracy has happened incrementally over the decades through judgements of courts across the length and breadth of the country. It would be belittling the Judiciary’s contribution to India by holding that the faith in the judiciary has been completely diminished by incidents of the past week.

(Abhik Chimni is a lawyer)