I write this piece with a heavy heart and a grave sense of responsibility. This is because I am writing about the Sentinel on the Qui Vive, a phrase etched in Indian jurisprudence by Justice Patanjali Sastry in his judgment in State of Madras v. VG Row, Union of India & State, in the following paragraph:
“What is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted “due process” clause in the Fifth and Fourteenth Amendments. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights,” as to which this court has been given the role of Sentinel on the Qui Vive.”
The immediate cause of concern arises from the recent public utterances by two of the seniormost members of the highest judiciary in the land.
Standards of judicial conduct
The first thing these public utterances bring to mind is the “Restatement of Values of Judicial Life”, as adopted by a Full Court Meeting of the Supreme Court of India on May 07, 1997. This “restatement” was ratified and adopted by the Indian judiciary in the Chief Justices’ Conference 1999. All the high courts in the country also adopted the same in their respective Full Court Meetings.
The “restatement” ends with the following sentence: “These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.”
Just in case a 1997 “restatement” is considered out of date (though there does not seem to have been any later document for Indian judiciary) there is a later document called The Bangalore Principles of Judicial Conduct 2002 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002.
The Bangalore Principles is an 11-page detailed document which provides six “Values” divided into 41 “Application Principles”, typical of UN guided agencies. The “restatement”, on the other hand, is a crisp three-page document which lists 16 “Values” of judicial life in fairly clear and direct terms.
Item 9 of the “restatement” reads: “A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media” (italics added).
Sources of current concerns
The primary sources of current concerns are a spate of interviews given by a former judge of the Supreme Court soon after his retirement on December 25, 2023, and an interview given by the current Chief Justice of India to PTI on January 01, 2024. I will begin with the interviews given by former Justice Sanjay Kishan Kaul. Though he has given many interviews, I will limit my observations to the interview published in the Indian Express on December 26, 2023.
Since the interview was published on the very first day after his superannuation, it can be argued that he did not violate Item 9 of the “restatement”. Technicalities such as whether the interview was actually conducted on the day of superannuation can be ignored but the issue of the letter and spirit of Item 9 of the “restatement” remains.
Coming to substantive issues, Justice Kaul makes extensive comments on the judiciary dealing with the government, particularly ‘strong’ governments. A few issues stand out. One pertains to what is referred to as “check and balance”. A couple of statements are worth quoting:
“Let’s take from 1950. All of them will always be a little tough and that is part of the job. They don’t like anybody to interfere and the judiciary’s job is to check and balance” (italics added).
“A weak opposition is also a problem. The absence of legislators from the opposition in the Parliament is an important factor. Maybe in public perception, it is their inability to politically handle the government. Now, the court cannot be placed to politically handle the government… The court cannot be the opposition. The judiciary is a check and balance but to say, look, the government is doing this wrong and now, you have to do something about it— is wrong” (italics added).
With respect, I would like to state that the judiciary’s “job” is not to “check and balance”, and judiciary is not a “check and balance”. Its job is to interpret the law, and it is a part of the system of checks and balances. To clarify that it is not just a matter of semantics, it is worth pointing out that judges, and more particularly judges of the highest court of the land, whether serving or retired, are known, and expected, to use words with care. This creates a concern about how the ‘job’ of the judiciary is seen and understood at the highest echelons.
The second issue is that of relations between the executive and the judiciary. For this again, a quotation is needed.
“Sometimes we forget the past. When there is a strong executive, there will be a little pushback for the judiciary. 1990 onwards, we have had coalition governments. So, the judiciary was able to advance its cause, sometimes even transgress into some areas, I feel. But with a majority government coming, it was expected that some steps would have to be taken back” (emphasis added).
This raises two concerns. One, what is judiciary’s ‘cause’? Two, why should judiciary ‘transgress’ even if there is a coalition or a ‘weak’ government? There can be more than one response to these two questions but it is doubtful many of the answers will do a favour to the institution that Justice Patanjali Sastry referred to as the Sentinel on the Qui Vive!
Justice Kaul’s comments on what he calls “politico-legal” cases which he terms as “basically political decisions” are valid but what he says about these getting “hyped to different levels because of the political consequences” has the potential to be misunderstood as undue political sensitivity.
He is again very correct in terming “bail hearings in…political cases” as “a complete waste of time” but then again, he ends the paragraph with “the government can weigh which cases it should litigate”, leaving one thinking should he not have let the government know this in no uncertain terms when he was on the bench.
When asked about the “role of the Chief Justice”, he referred to the Supreme Court as “a very registry-driven court” and went on to say, “Whatever happens is really between the Chief Justice and the registry.”
This takes one back to December 5, 2023, when it was discovered that two petitions seeking contempt of court action against the Union government over the delay in appointing judges whose names were cleared by the Supreme Court collegium, listed before a bench headed by him seemed to have been deleted from the cause list, he was reported to have said, “I clarify that it is not that I have deleted the matter or that I am unwilling to take the matter, both.” When it was suggested that an explanation should be asked from the registry, he reportedly said, “I am sure the Chief Justice is aware of it…Yesterday I found it was deleted. I checked up.” When the counsel in the case said it “very unusual”, Justice Kaul was reported to have said that “some things are best left unsaid sometimes”. The last statement about leaving some things ‘unsaid’ says a lot!
We now come to the interview given by the CJI to PTI on January 1, 2024. The very first issue that comes to mind is item 9 of the “restatement” which categorically says that a judge “shall not give interview to the media”. It is correct that the first sentence refers to let “judgments speak for themselves” which the CJI alludes to later in the interview, but more on this later in this piece. One wonders whether the ‘Values of Judicial Life’ still apply or have they been given a quiet burial.
Coming to the substantive issues in the interview, in this case two issues stand out. One deals with the allocation of cases to different judges and the other with what has come to be referred to as the Ayodhya judgment.
When asked about some recent commentary, arising out of a few recent incidents including, but not limited to, Justice S.K. Kaul’s comment on December 5, 2023 mentioned above, the CJI said, “There are very well-defined structures and processes for the allocation of cases.” He then explained the system in some detail and went on to say, “I have been a member of the bar as well, no lawyer can insist that I’ll have my case decided only by a particular judge because that does not do justice either to the credibility of individual judges or the purity of the administration of justice.” He followed up this with:
“I am very very clear in my mind that if the credibility of the institution of the Supreme Court is to be maintained, we have to ensure that the allocation of cases in the Supreme Court is not going to be a lawyer-driven allocation. It has to be an allocation which we do in terms of our processes and systems which are laid down in the Supreme Court. Having said that I can only say that, well, you have to trust your decision makers.”
This repeated stress on “lawyer-driven allocation” is possibly an indicator of the over-sensitivity of the CJI to some recent incidents. In addition to Justice Kaul’s comment in open court, there was another incident in which a couple of senior lawyers wrote ‘open’ letters to the CJI about apparent inconsistencies in the process of case allocation. Based on the contents of these letters, which are available in the public domain, there does not seem to be any demand for a “lawyer-driven” allocation; all that the lawyers seemed to have been asking for was reasons for deviations from the “systems and processes” specified in the documents of the court itself, namely, Supreme Court Rules, 2013, and Handbook on Practice and Procedure and Office Procedure 2017, published by the Supreme Court of India under Article 145 of the Constitution of India. The concerns it raises are two-fold: (a) That there were apparent deviations from the laid down “systems and processes”, and (b) that the CJI chose to respond to these seeming deviations through a scripted interview in the public domain thereby violating Item 9 of the “Restatement of Values of Judicial Life”.
The Ayodhya judgment is indeed historic, though there have been all kinds of commentary on it. One of the issues that has been around ever since the judgment was pronounced on November 9, 2019 has been that of the authorship of the judgement. This is supposed to be the very first judgment of the Supreme Court since the court’s inception for which the name of the judge who actually wrote the unanimous judgment was not revealed. Since the CJI was a member of the five-judge bench who pronounced the judgment, when he was asked about the authorship, he said:
“When the five-judge bench sat to deliberate on the judgment as we all do before a judgment is pronounced, we all decided unanimously that this will be a judgment of the court and therefore there was no authorship ascribed to an individual judge. The case had a long history, of conflict, of diverse viewpoints, based on the history of the nation and all of us who were part of the bench decided that this will be a judgment of the court. The court will speak through one voice. The idea of doing so was to send a clear message that all of us stood together not only in the ultimate outcome but also in the reasons that were indicated in the judgment, and that is why we decided that it will read as a judgment of the court. Since we decided that it will read as a judgment of the court, it will always remain a judgment of the court. And I will close my answer with that.”
This response creates uncertainty about all the unanimous judgments that the court has issued in its entire history. Simply stated, the uncertainty is: Are all other unanimous judgements not “judgments of the court”? The number of questions this response raises can be increased to match the number of times the phrase “judgment of the court” (five times) but that should not be necessary. The question stands on its own.
Concluding comments
Arguably, the strongest pillar of the state which has been entrusted the onerous responsibility of safeguarding the most cherished fundamental rights of citizens under the Constitution of India by “We, the People” seems to be on shaky ground itself. This does not portend well for the nation, the society, and the people. The hope of this article is that the judiciary will pull itself together in pursuit of its momentous task and it is the duty of all of us, “We, the People”, to strengthen it so that it can become a true Sentinel on the Qui Vive.
Jagdeep S. Chhokar is a concerned citizen.
