Lawyers are on last frontier between the judiciary and the executive, and can either safeguard the judiciary’s independence or facilitate the collapse of the separation of powers between the two. Judges, after all, are drawn from the community of lawyers and the organic link between them is never broken. An independent bar is therefore a precondition for the independence of the judiciary. But do we have one today? As the Supreme Court Bar Association moves towards the election of its leaders, its members must think carefully who they wish to elect to safeguard the independence of the judiciary
Defending the Constitution is our daily job.
We are trained to identify any deviation from rules and norms which become immediately visible to us and we are trained to raise an alarm when we see arbitrary actions, whether on the administrative side of the judiciary or the executive. It is in this context that the powers of the ‘master of the roster’ have come in for comments from the legal profession.
Assignment of work is made by the master of the roster, the chief justice of the court. This roster is announced in advance and is dependent of subject matters such as civil law, service law criminal etc. Assignment of work is not and must never be dependent of who is the petitioner before the court.
Some of us noticed with alarm that matters relating to politicians concerning life and liberty go to certain benches alone. It was then our duty to raise an alarm. If our fears were misplaced, we had a right to be informed about the reasons for these decisions and assured that no arbitrary assignments were being made. Despite public debate on the issues, no explanation has been forthcoming from the registry of the court. In this situation, it becomes the duty of lawyers to raise the issue collectively and individually in different fora, inside and outside court.
A recurring problem
The problem is not new. As recently as in 2018, four senior judges of the Supreme Court raised the issue in the public domain when Deepak Mishra was the CJI. Despite this no solution has been found to the problem until it has surfaced again in recent times.
The issue was raised in court by the late Shanti Bhushan when he filed a petition challenging the power of the ‘master of the roster’ as being unguided and arbitrary. On one occasion when Prashant Bhushan was entering the court to appear in the matter, he was physically stopped from entering by a vociferous section of the bar who blocked his entry and tried to prevent him from reaching the front row.
This episode set the trend for the open display of polarisation at the bar through extra-constitutional means. What must be noted is that every effort was made to raise the issue of the powers of the master of the roster through legal channels. The issue remains outstanding and since it concerns the functioning of the judiciary, which is itself charged with the duty to protect the rights of the citizen versus the state, it will continue to be debated in the public domain.
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Questions of life and liberty
This time it has surfaced over the issue of life and liberty. Lawyers have noticed that matters relating to the denial of life and liberty, especially of politicians of the opposition kind (others have no need to worry about life and liberty) and indeed members of civil society whose incarceration is considered necessary by the powers that be, such as Umar Khalid, get assigned to specially constituted benches. Things have reached a stage when litigants may be losing faith in the independence of judiciary. When those who are in custody seeking bail withdraw their cases from the Supreme Court rather than have it heard, the judges should be sitting up an asking themselves the question, why is this happening?
Whither ‘dispensation of justice’?
There is a collapse of the system of dispensation of justice for reasons which are too numerous to document here but history has shown that there will be from the legal profession, a resistance to any attempt to interfere with the independence of the judiciary. The recent letter stated to be written by 600 members of the bar, led by Harish Salve, comes as no surprise. It is in fact a reaction to the resistance and a defence of the status quo.
To begin with, as many have pointed out, the letter comes soon after the decision in the electoral bonds case and the not-so-subtle reference is to those who appeared in the case. It is no secret that Salve, now based in London, appeared on behalf of the State Bank of India (SBI) and was told in no uncertain terms that there was no ambiguity in the order as claimed the SBI and the judgment of the court should be respected forthwith. In this letter, he now finds his place with the president of the Supreme Court of India Bar Association and the president of the Bar Council of India, both of whom cannot open a sentence without “thanking the PM” for whatever it may be they are talking about. It is hardly a matter of surprise that the letter now gets the approval of the prime minister of India via a tweet blaming the Congress. This is yet another reference to lawyers who appeared in the case, some of whom were members of the Indian National Congress at some point.
The letter suggests that some of us who have spoken up on these questions are trying of “browbeat” the judiciary and that we selectively praise the judiciary when it suits us and criticise it when we lose cases in court on behalf of clients. The judiciary is an institution charged with the duty of standing between the citizen and an overbearing state. There will always be lawyers who will raise difficult questions about the functioning of the judiciary in defence of a rule of law. In order to stay robust, the judiciary must receive issue-based support from society and the legal profession but not unconditional support from the bar.
When we raise demands for free and fair justice on matters of life and liberty in the public domain, we defend the Constitution itself, not just the clients we represent. This is not cherry-picking for individuals or for corruption as suggested but support for right action when it is deserved and criticism of any deviation from the rule of law. Lawyers do not expect every case to be decided in favour of their clients but they do expect a fair and impartial hearing in court .
Given the importance of the judiciary and the legal profession, ruling parties have always tried to organise lawyers on their side and this letter is one such attempt. There are no institutional structures of communication between the judiciary and the government. Its institutional communications are confined to the appointment of judges and no more. Perhaps on budget and infrastructure issues the minister of law and justice does have official channels of communication with the judiciary, but nothing beyond that. Hence lawyers become very important channels of communication between the two institutions and the surrogate voice of the ruling party can be heard through them.
A duty to speak up
Lawyers have a duty to speak up when they see a failing judiciary and by that, I mean a judiciary in danger of losing its independence. On these issues lawyers have a duty to speak inside courts and outside court. This is not about supporting individual judges or opposing others. It is also not about winning of losing a case, it is about losing the judiciary as a whole. When we see that special rosters are set up to deal with special case, we need to speak up. When essential institutions of democracy are not protected such as the independence of the Election Commission, we need to speak up. This is not about cherry-picking individual cases, but about our approach to those cases which by their very nature support of undermine constitutional values.
It is no accident that this polarisation of the bar has taken place over the last ten years, a time when the country itself has been polarised quite consciously by the right-wing, which has strong politically aligned organisations in the legal profession.
The solution, if any, lies in transparency and accountability. It is time for the secretary general of the Supreme Court registry to issue a white paper on the powers and functions of the ‘master of the roster’ for the country as a whole to debate.
Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India.
