By Aman Lekhi
Aman Lekhi is a Senior Advocate at the Supreme Court of India and writes on constitutional and commercial law issues.
If the four most senior judges of the Supreme Court of India are to be believed, dystopia is no longer a fictional place which is unpleasant and bad like the Orwellian superstate Oceania nor one which will exist in the future like Huxley’s Brave New World. It is very real and endures and abides today as Supreme Court of India. The judges, however, yet choose to remain part of it!
The fact that the judges had no choice but to “communicate to the nation” was the reason for a press conference held at the house of Justice Chelameswar on January 12, 2018. Justice Chelameswar explained the reason thus: “I don’t want that twenty years later, some very wise men in this country blame… Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph… sold their souls; they didn’t take care of this institution; they didn’t take care of the interests of this nation. We don’t want it to be said. So we place it before the people of this country.”
The “sale of soul” for favours is illustrated by the legend of Faust and in the context of the letter which the four judges wrote, the Chief Justice of India should be Mephistophelies — the Devil’s representative with whom Faust wagered his soul! Surprisingly, however, when the judges were asked if they were expressing no-confidence in the Chief Justice, Justice Chelameswar answered, “don’t put words in my mouth”.
The obvious inference is that the four judges have confidence in the Chief Justice. And if that being so, what was the occasion for this press conference?
This is a classic case of ‘non-denial’ — a method of making statements which behoves politicians more than judges. The Sunday Times of London described non-denial as “an on-the-record statement, usually made by a politician, repudiating a journalist’s story, but in such a way as to leave open the possibility that it is actually true.” If the situation was so grave as to take a measure so extraordinary and appeal directly to the people, what was the occasion to prevaricate?
It is astonishing and unfortunate that the judges were equivocating about issues they were obliged to be explicit, express, and forthright about.
This hedging was evident not only in the answer to the journalists’ questions but was glaringly present in the letter itself.
Weasel words are all with which the letter abounds.
After talking about “well settled principles…” relating to the “privilege to determine the roster” and the “corollary… the members of any multi numbered judicial body including this Court would not arrogate the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches,” departure wherefrom would lead to “unpleasant and undesirable consequences”, the letter says, “there have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches “of their preference” without any rationale basis.”
Neither the “instances” have been set out, nor the “far-reaching consequences” spelled out, and this statement sits uncomfortably with the response to the question concerning confidence in the Chief Justice of India.
“Communication”, to be meaningful, has to add value to what a person already knows and needs, in addition, to be accurate. But the letter only adds to the rumble.
The reason for not giving details is stated in the letter as “to avoid embarrassing the institution”. This is self-contradictory and absurd. If not embarrassing the institution was the predominant motive then the judges should have kept quiet, notwithstanding the alleged improprieties and improbities in the institution, but having chosen not to keep quiet they ought to have known embarrassment was inevitable, and could not then use the possibility of embarrassment to withhold details. The institution stands embarrassed today, and that too without any details for the “people” to judge, whether the embarrassment is really justified.
The letter next refers to the Memorandum of Procedure. There is a rationing of facts here. Reference is made to the order of October 27, 2017, in RP Luthra’s case, to allege the bench other than the Constitution Bench ought not to have heard the matter. But reference was not made to the subsequent order of November 8, 2017, recalling the earlier order. And the letter goes on to state that after the issue is “adequately addressed” and “if it becomes necessary” the judges will apprise about “other judicial orders” which require to be similarly dealt with.
The “people” do not know about the “other judicial orders” but if they do need to be dealt with, how can the necessity be left to the discretion of only four judges?
The Chief Justice may be merely first among equals but the senior judges cannot form an oligarchy themselves which will impact the institutional integrity which they seek to protect.
The situation was made worse by Justice Chelameswar meeting D Raja soon after the press conference. It violated the decorum the situation demanded and, in the absence of specifics, fuelled speculation about the real reason behind the press conference — a situation which could have been avoided, detracting as it did from the solemnity the situation demanded. And, an abrupt and short “yes” by Justice Gogoi to a flurry of questions including one related to Judge Loya’s death — which found no mention in the letter — made the conference an exercise in cryptography than plain and simple communication.
The press conference portents nuts and bolts of the system coming loose with the inevitable possibility of elements playing dangerously with the system. Prakash Karat’s comment on Bench composition of a particular kind, and the Bar Association taking over as the Master of the Roster being cases in point.
As Scott and Sturm mentioned in the Columbia Journal of European Law, the judiciary is not just the norm enforcer and elaborator but the catalyst to facilitate the realisation of process values that are crucial to a governance’s legitimacy and efficacy. But having been compromised, the institution itself has been robbed of the efficacy to precipitate any change. The institutional imbalance which will follow will impact the very framework of law which holds all actors in check. The “people” may well feel courts are corrupt and the street is the best place to seek justice. Democracy or nomocracy may then be replaced by ochlocracy — the rule of the mob!
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