One Year After Judges' Press Conference, SC Still Fails the Transparency Test

New Delhi: One year after the historic press conference by the four judges of the Supreme Court, it is natural to ask if their unprecedented step has had the desired effect on its decision-making.

The participants in the dramatic protest – Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and Ranjan Gogoi, now the Chief Justice of India – are still reticent to talk about the exact trigger for their presser. Yet it is possible to piece together the preceding events in the court, and the suppressed disappointment they produced – which ultimately found expression in their dramatic public statement.

Once the genie was out of the bottle, many thought the court would be stuck in a permanent crisis. Instead the genie was put back into the bottle – and what appeared to be a crisis blew over, thanks to the strength of the institution.

The participants in the dramatic event soon contained their differences, so that their 'rebellion' would not affect the day-to-day functioning of the court. They sought to present a calm face to everyday litigants, as if nothing serious had happened on January 12, 2018.

In that respect, the press conference was a kind of a safety-valve, which helped to discharge the serious effects of dissent within the institution. More than anything else, it provided an opportunity to focus on the process of decision-making within the court, which has remained hidden from public scrutiny all along.

Having said that, we still need a balance-sheet of what has changed and what hasn’t, if only to understand better the significance of the presser, in retrospect.

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First and foremost, the four judges reminded the then Chief Justice, Dipak Misra, that members of any multi-numbered judicial body including the Supreme Court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate Benches, both composition-wise and strength-wise, with due regard to the roster fixed.

They told the CJI that the convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court, but not a recognition of any superior authority, legal or factual, of the Chief Justice over his colleagues.  “It is too well-settled in jurisprudence that the CJ is only the first among equals – nothing more or nothing less”, they wrote in their letter to the CJI, which they shared with the media.

The judges also referred to instances – without specifying what exactly these were –  where cases having “far-reaching consequences for the nation and the institution” had been assigned by the CJI selectively to benches “of their preference” without any rational basis for such assignment.  “This must be guarded against at all costs”.

These are observations which required further elaboration, without which they would remain hollow. Which were these cases having “far-reaching consequences for the nation and the institution”? Who was the "their" whose "preference" was leading essentially to bench fixing? One year later, the answers remain unclear to both the judges and the ordinary public.

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What the “rational basis” for the CJI assigning such cases to different benches as the master of the roster should be, without him inviting the charge of bias also remained unarticulated by the four judges. Had they done so, it could have taken their extraordinary intervention to logical conclusion, by sharing the results of their brainstorming with civil society. Unfortunately, they didn’t. Not even by the three of them, after their retirement.

Chief Justice Ranjan Gogoi, who now has the opportunity to do so, also maintains a mysterious silence over the need to bring about the necessary reform on paper so that institutional remedies are in place – to avoid a repetition of the unpleasant events which tarnished his predecessor’s tenure.

Shanti Bhushan case

The Supreme Court lost an excellent opportunity to lay down such principles and norms to reform the exercise of powers by the CJI as the master of the roster in Shanti Bhushan v Supreme Court of India Through its Registrar and Another.  In this case, Shanti Bhushan, the former Union law minister and a senior advocate of the Supreme Court, wanted the Court to clarify the administrative authority of the CJI as the master of the roster and lay down the procedure and principles to be followed in preparing the roster for allocation of cases.

In particular, he sought directions to read the expression, ‘Chief Justice of India’ as the collegium of five senior-most judges of the Supreme Court, so that the power to allocate cases among the judges, and constitute different benches of the Supreme Court does not remain vested in a single person, that is, the CJI.

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Shanti Bhushan’s plea made sense in the context of the Supreme Court’s constitution bench ruling in the case of the turf war between the Delhi government and the Centre (Government of NCT of Delhi v Union of India) that in a true democracy, power shall not remain vested in a single person.

However, in their judgment in the Shanti Bhushan case, Justices A.K. Sikri and Ashok Bhushan expressed their unease with his plea, merely calling it impractical.

“In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of the Supreme Court, or for that matter, the high courts...meeting of collegium for the purpose of assigning the cases to a particular bench on daily basis is clearly impracticable”, Justice Sikri observed in his judgment.

Bhushan had brought to the notice of the bench that the Handbook on Practice and Office Procedure, published by the Supreme Court – which contains provisions in Chapter XI conferring special power on the CJI to issue directions for listing of “important and sensitive cases” as also in fresh cases – is wholly outside the ambit of the constitutional scheme and the Supreme Court rules.  “It is void ab initio, and cannot be interpreted to confer any such power on the Chief Justice when the powers are conferred on the Supreme Court under the constitution”, Bhushan had explained in his submission. The Sikri-Ashok Bhushan bench, however, ignored this submission, thus leaving the point unaddressed.

Ayodhya case as illustration

Unfortunately, the same lack of clarity on the hows and whys of benches is evident even today.

Take for instance, the recent order passed by the five-judge bench of the Court, while hearing the Ayodhya title dispute on January 10, and which had to be adjourned due to Justice Uday Umesh Lalit, a member of the bench, recusing in view of his appearance as a counsel in a connected matter in 1997.

Senior advocate Rajeev Dhavan drew the attention of the bench to certain speculations as to why the matter was fixed for hearing before a bench of five judges, though the three Judges bench on September 27 last year had expressly directed that the matter be listed before a three Judges bench.

In response, the CJI said in his order:

“The decision to post the matter before a Five Judges Bench had been taken by the Hon’ble Chief Justice on the administrative side in exercise of his powers under Order VI rule 1 of the Supreme Court rules, 2013 which mandates that “every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice”.  Order VI rule 1 of the Supreme Court Rules, 2013 prescribes the minimum numerical strength of the Bench and it is always open for the Hon’ble Chief Justice to decide, having regard to the various relevant facts and circumstances, which cannot be exhaustively laid down, to constitute Benches of such strength that the Hon’ble the Chief Justice deems it proper. This is how the present bench of five Judges has been constituted which is, in no way, contrary to what has been laid down by the Three Judges Bench in the aforesaid judgment and order dated 27th September, 2018”.   (emphasis added)

No one suggests that all the relevant facts and circumstances which justify the setting up of a five-judges bench must be exhaustively laid down by the court. But one is entitled to ask what the "relevant facts and circumstances" in this case were, which justified the CJI's exercise of his administrative power to set up a five judge bench to hear the matter, contrary to the previous decision of a three-Judge bench.  Chief Justice Gogoi may well have a valid reason, but it is not clear why he should feel shy of disclosing it.

It is clear that once reconstituted, the five judges bench would be at liberty to examine any question afresh, even if a three-judge bench had decided it earlier. Therefore, the failure of the bench to explain adequately the constitution of the five judge bench to hear the matter may appear as an infirmity, especially when it is understood that the administrative powers of a chief justice cannot overrule a judicial order.

By convention, a bench of five judges is constituted to hear a matter only when a case involves a substantial question of law as to the interpretation of the constitution or for the purpose of hearing any reference under Article 145(3).  Merely citing the rule, without any reference to the substantial question of law involved, does not make the decision to constitute a bench of five judges any more rational.

Besides, the argument that a rule is subservient to a constitutional provision has not been rebutted in the January 10 order, if they are considered to be in conflict. How this anomaly will be resolved in the next hearing of the Ayodhya case will be watched with interest.

The issue in January 2018 and now is not whether the CJI, as the master of the roster, has the power to constitute benches of such strength or composition, which he deems proper.  The point the four judges made then was that such power ought to be exercised rationally.

Whether CJI Ranjan Gogoi’s reasoning in the Ayodhya matter passes the rational test – laid down by the four judges, including himself, exactly one year ago – is a moot question.

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