4 SC judges had no option but to go public

As I was reading the statements of the “gang of four” judges, a Tamil adage crossed my mind which when translated to English means: “If a father beats a child, the child can go to the mother, if the mother beats the child, it can go to God. But if God himself beats the child, where does the child go?”

We go to the court to resolve our disputes, but if the judiciary itself is rigged with problems, where do we go? The court has always been the last resort for citizens. If doubts are created about the functioning of the Supreme Court itself, what happens to public confidence?

The question arises whether the four judges were right to speak to the nation through the media? It’s a “to be or not to be” situation. The courts flourish with precedents and procedures. Normally, judges speak either through judgments or in meeting halls, not otherwise. Therefore, when four senior judges of the Supreme Court held a press conference, questions were raised about the propriety of such an action: were the judges right to approach the people of the country?

Now, look at the facts. They are the top judges of the nation. To their right is the executive government headed by the President of India, to their left is the legislative government headed by the Prime Minister, and before them the entire country, represented by the media.

The judges said that they failed in their attempt to convince the Chief Justice of India about the “roster” issue, which, as things stand today, is no doubt a privilege of the CJI.

The CJI is expected to act judiciously and follow the rules, procedures and conventions and act without fear or favour.

The allotment of work and constitution of the benches is not a judicial act but a pure and simple administrative action and should be done fairly, without mala fide and fear or favour. Courts have been repeatedly striking down administrative action on the ground of mala fide and when they were “colourable action” (counterfeit; something that is false but has the appearance of truth).

The four judges have gone on record stating that they raised the issue repeatedly before the CJI but failed to convince him. Since the CJI disagreed with these four judges, there were three options before them: to approach the President, the Prime Minister or to meet “heavyweight” politicians. Meeting the President would be condemned as submitting to the executive; meeting the Prime Minister would be futile as resolving a complaint through the legislature is long-drawn process; and if politicians are involved, then the four judges would be accused of politicising the issue. I feel Justice J. Chelameswar’s meeting CPI leader D. Raja, a Rajya Sabha MP from Tamil Nadu, was in any case a tactless act.

The Supreme Court “snatched” the constitutional power of appointing judges from the executive government, contrary to the constitutional mandate, and “gave to itself” the power to appoint judges. The Supreme Court has phrased the word “collegium” — in which the five seniormost judges are given the power to appoint and regulate the judges of the Supreme Court and high courts.

Now the question is: If the “collegium” is a powerful body to regulate the judiciary in this country, is the CJI not bound by the majority view in the collegium, which is now split into 1:4? Considering that the “collegium” is a body created by the Supreme Court itself, doubts are raised when the CJI refuses to consider the view of its majority. Who then is the CJI “listening” to? If the Supreme Court can take away the executive power of appointment of judges, should not a “collegium” have the power to decide the internal administration of the Supreme Court?

All this meant that the only option before the four judges was to go to the citizens of India through the media to create public opinion about the functioning or non-functioning of the Supreme Court. Purists may say that taking the matter to the public by a judge is unheard of. Equally unheard of is a Chief Justice acting mala fide and violating rules and procedures while forming benches.

What is the difference between the outbursts of Justice C.S. Karnan and the present development? Justice Karnan had said that judges were corrupt at a time when the needle of suspicion was also against him without any proof. When asked to explain, he went astray and landed in jail. 

As against that, these judges made no personal allegations against anyone, including the CJI. They had one grievance which they raised “in-house” many times and failed, and as they ould not go either to the President or the Prime Minister, they approached the people, who are the ultimate sovereign in our democracy. In my opinion, there is nothing wrong in it.

Dr. B.R. Ambedkar had said: “However good a Constitution may be, it will tend to be bad if those who are called upon to work on it happen to be a bad lot”. A Chief Justice of the United States Supreme Court went a step further when he declared: “We are not final because we are infallible, but we are infallible only because we are final.”