Chief Justice - First Among EqualsBG Verghese Memorial Lecture, The Media Foundation

March 9, 2018Justice Ajit Prakash Shah

INTRODUCTION

1. Good evening to all of you today. Thank you very much Ms Sevanti Ninan

and the Media Foundation for inviting me to be the speaker at this year’s BG

Verghese memorial lecture. Greetings also to Mr Stephen Butler, Mr

Chaitanya Kalbag, and other distinguished members of the audience. I knew

of BG Verghese from the days when he was the Chairperson of the

Commonwealth Human Rights Initiative. I was on the executive committee

of CHRI, and he was a wonderful person to work with.

2. BG Verghese was a pillar of strength, in more ways than one for journalists,

human rights activists and civil society in general. He stood by and fought

for democratic principles throughout, alongside other stalwarts like

Jayaprakash Narayan, and VM Tarkunde. Most notably, I remember that,

during emergency, his criticism of government policy led him to be removed

from his role as editor of the Hindustan Times.

3. Verghese stood for a great many things, which showed through all his actions

and work - whether it was working for civil liberties and democratic rights,

through his association with organisations like CHRI, PUCL and the like, or

the idea of a free press, through symbolising what was meant by ideal

journalism. Indeed, journalism was practically his mission. It goes without

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saying that he is greatly missed today, especially in this age when large

sections of media have become propaganda machines, more than anything

else.

4. When I was asked to speak at this memorial lecture, I thought it would be

most appropriate, and relevant, to speak of the proceedings that have lately

besieged the institution I have been most closely associated with, the

judiciary.

FIRST AMONG EQUALS

5. I want to start with a small anecdote. In the late 19th century, the third Chief

Justice of Victoria in Australia was one George Higinbotham, whose

reputation as someone who was extremely thrifty, and who derided wealth

was only too well known. His fees when practising as a lawyer were

notoriously low, and he routinely distributed his earnings to the needy. One

story of his when he was judge particularly stands out. As Chief Justice, he

was entitled to a stipend of 3500 Pounds, which was 500 pounds more than

his fellow judges. He was so uncomfortable at the prospect of being paid that

extra amount, that he would spend the additional 500 pounds on lavish

entertainments, which were completely useless to him. His view was that as

Chief Justice, he was merely primus inter pares, or first among equals. In his

official capacity, he was the chairperson and official representative of the

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bench, but in all respects, he regarded his powers to be identical to those of

his fellow judges. 1

6. Indeed, this is true of anywhere in the world, that is, a Chief Justice is merely

first among equals. Even in High Courts in India, which I am familiar with,

even though a Chief Justice has certain official roles, such as showing some

intellectual leadership, presiding over administrative meetings, and allocating

work, and recommending names of judges for elevation, along with the

collegium of judges, at no point in time is the Chief Justice considered or

made to believe that they may be superior to other judges in the court.

7. Another Australian judge, Sir Owen Dixon, captured this idea beautifully, in

his speech on being sworn into the office of Chief Justice:

“The court is a co-operative institution; the position of the man who

presides differs very little from that of any other judge. Perhaps he

receives a little more attention from the Bar than he deserves because he

announces the conclusions of the court first, but all my judicial

experience tells me that a man's influence on the court does not depend

on where he sits.”

THE CONTEXT

8. There is no need for me to be cryptic about why I choose to speak on this

subject. All of you are well aware of what it is that I am referring to. But it is

1 John Michael Bennett (2006), George Higinbotham: Third Chief Justice of Victoria, 1886-1892, p. 206, The Federation Press

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worth recapturing just briefly, if only to re-emphasise the importance and

gravity of the incident, which I worry that perhaps we have not fully grasped.

9. A little less than 2 months ago, on January 12, 2018, tremors shook the

ground beneath the Indian judicial system, “in an extraordinary event in the

history of any nation”, as the protagonists themselves described it, when four

of the five senior-most judges of the Supreme Court decided to go public with

their concerns about the working of the institution they were a part of. Never

before in the history of independent India, and certainly not in the history of

the highest court of the land, had judges addressed the media through a press

conference. The four judges - Justices Jasti Chelameshwar, Ranjan Gogoi,

Madan Lokur and Kurian Joseph -- without mincing words, said that unless

the judiciary as an institution is preserved, “democracy will not survive” in

this country.

10. Their concerns spanned a range of issues, but most importantly, included the

administration of the Supreme Court, which, they said, is not in order, and I

quote, “many things which are less than desirable have happened in the last

few months”. They also expressed pointed displeasure at the Chief Justice of

India’s actions over the past few months, stating that “We met the CJI with a

specific request which unfortunately couldn't convince him that we were right

therefore, we were left with no choice except to communicate it to the nation

that please take care of the institution.” and that “We tried collectively to

persuade the Chief Justice of India that certain things are not right and

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remedial measures need to be taken, but unfortunately we failed”, which is

why they decided to approach the press and make their concerns public.

11. The crux of their allegation was that court conventions of bench-strength and

bench-composition, in the allocation of cases, were not being followed. They

specifically alleged that, “there have been instances where cases 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

preferences’ without any rational basis for such assignment.”

12. The judiciary in India is unarguably an institution that enjoys the trust of the

people. It is perhaps one of the most powerful institutions in the country, and

is highly regarded for having upheld constitutional principles time and again

over the past decades.

13. This press conference and the allegations made by the judges brought to light

many issues which have been simmering for several months, and which

strike at the foundations of the institution. Today, I want to talk about these

issues, the implications it has on the future of the judiciary, and the kinds of

questions we need to be asking to ensure that our democratic system remains

in good health.

WHY DID THE JUDGES PROTEST?

14. When the four judges held this press conference, some commentators

speculated that this amounted to gross impropriety on their part, and their

actions smacked of judicial misconduct. While they have not attempted to

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defend their actions thereafter, it seems unlikely that they would not have

assessed the implications of these events. Indeed, their actions actually

suggest the contrary, that rather than being in breach of their code of conduct,

they were perhaps displaying allegiance to the oath of office they took upon

entering office.

15. I believe that these four judges felt so troubled by the goings on in the

judiciary and the Supreme Court in particular over the past few months that

they felt driven to go public, for otherwise, they would be in transgression of

their constitutional duties. In my mind there was no doubt as to the intentions

behind the press conference. All four of the judges involved risked something

or the other in being a part of this public conference. Justice Gogoi, for

example, has placed on the line his chances of succeeding Justice Dipak

Misra as the Chief Justice of India (CJI), for, as per, convention, the incoming

CJI is appointed on the recommendation of the outgoing CJI. In equal

measure, the other three, although they will retire well before the current CJI

does, have risked criticism from their peers, and perhaps also getting isolated

from the bar and bench after they retire.

WHEN CAN JUDGES SPEAK?

16. When the press conference took place, the question that probably crossed

most people’s minds was whether the judges were right - in the first place - to

speak publicly at all.

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17. This reminds me of an incident that took place when I was a judge in the

Bombay High Court. Around then, some serious allegations had been made

against the then Chief Justice in Bombay High Court. In this case, the senior

judges took the lead against the Chief Justice. They spoke to the Bar

privately, and they also involved some junior judges, and took them into their

confidence. Eventually, the Chief Justice was made to resign by the Supreme

Court. If the senior judges had not been received in this manner, or if the

resignation had not taken place, I have often wondered what might have

happened. The senior judges might well have gone to the press, had they been

sufficiently disenchanted with the way things were. There are situations and

situations that lead individuals to take action.

18. In this regard, Justice MC Chagla, who, in my opinion, was one of India’s

finest Judges, had some apposite remarks to make in his autobiography. In

the case of Justice MC Chagla, in contrast to the story I just told you,

however the pressure came from the government. The then Chief Minister of

Bombay, Morarji Desai, had expressed disapproval at certain speeches Justice

Chagla had made criticising government and policy. Justice Chagla, while

agreeing with the Chief Minister Desai, that a judge should not take part in

politics or discuss political issues, said that this rule was subject to two

exceptions: the first was the right to criticise the government on its education

policy, which he was personally interested in, but the second was the more

important one, relating to laws which concerned the administration of justice.

Justice Chagla said that “if the government passed any law or pursued any

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policy which … undermined the prestige of the judiciary or weakened the

administration of justice,” he would “speak, and speak out loudly”.

19. While this is clearly not a situation like Justice Chagla found himself in, the

issue raised by the four judges concerns the question of administration of

justice, and to that extent, I think many of us would agree that it behoves a

member of the judiciary to “speak out loudly”.

20. In his book unambiguously titled Judges, the English baronet and barrister,

David Pannick, captures this appropriately in his critical analysis of the

Kilmuir Rules, set out in 1955 in the UK which prohibit judges from

participation on radio and television. Fortunately, this rule is no longer the

norm in the UK. But it came about when the BBC asked Lord Chancellor

Kilmuir to grant permission to certain judges to participate in a series of radio

lectures about great judges of the past. In response, Kilmuir said that “the

importance of keeping the judiciary in this country insulated from the

controversies of the day” was of primary concern. Kilmuir added that it was

inappropriate for judges to be associated with “anything which could be fairly

interpreted as entertainment”, including talks, and that, as a general rule, it

was “undesirable” for judges to appear on radio or television.

21. Pannick correctly argues that this ban had no justification, especially in the

case of an independent judiciary. He says,

“Judicial independence is compromised not by public explanation of the

judge’s views but by attempts to restrain him and threats to dismiss him if

he does not conform to conventions which have no legal force and are

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contrary to the public interest. A judge should be fully entitled to speak out

on matters of public concern so long as he does not give people cause for

suspecting bias or partiality in the cases to be heard in his court and so long

as he refrains from comment on matters of political controversy.”

22. Especially in circumstances that are considered damaging to the

administration of justice, the silence of judges cannot possibly be justifiable.

Pannick adds that, “Judges should not be treated like children in Victorian

times, required to remain silent unless spoken to. They are entitled, indeed,

they have a public duty, to speak out of matters concerning the

administration of justice.”

23. Closer to home, Justice MC Chagla, too, was only too aware of the

consequences of silence. In his autobiography, he wrote “There is always a

tendency on the part of any Government to centralise power, to encroach

more and more on the authority of collateral organs of the constitution, and

to throw out tentacles which would embrace as many independent institutions

as possible.”

24. “It is an unfortunate fact”, he added, “that all governments, regardless of their

complexion, resent criticism, opposition and dissent to a greater or lesser

degree.” Arguably, this fear persists even today, but such fear should not

overwhelm the freedom to speak out.

SPEAKING THROUGH THE MEDIA

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25. Several judges and lawyers expressed the view that these four should not

have gone public, but should have attempted to resolve the matter internally.

As one English Chief Justice, Lord Widgery, said that”the best judge [is] the

man who [is] least known to the readers of the Daily Mail”, and who advised

that “judges should not court publicity and certainly should not do their work

in such a way as to to ‘catch the eye of the newsman’”.

26. Some observers said that these four judges violated judicial ethics in going to

the public in this fashion. On May 7, 1997, the Supreme Court of India in its

Full Court adopted a Charter called the “Restatement of Values of Judicial

Life” to serve as a guide to be observed by Judges, essential for independent,

strong and respected judiciary, indispensable in the impartial administration

of justice. According to guideline number 8, “A Judge shall not enter into

public debate or express his views in public on political matters or on

matters that are pending or are likely to arise for judicial determination.”

Guideline number 9 says that “A Judge is expected to let his judgments speak

for themselves. He shall not give interviews to the media.”

27. But in the present context, neither of these guidelines - 8 or 9 - can be held up

against the actions of the four judges. Did they enter into public debate? On

the contrary, they made only a public disclosure. They did not express views

on political matters, or on matters pending for judicial determination. Instead,

they made a public statement on what they felt was the state of the institution

they were a part of, about judicial independence and impartiality, about

administrative functioning, case allocation, and judicial convention.

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28. One worthy judge-commentator also said that there must be contempt action

against these four judges. Suggestions such as this merely perpetuate the

cultural norms of secrecy and non-transparency that have led the judiciary to

where it is today - as an opaque institution that can neither be questioned

from within or outside. This institutional construct is a legacy of our colonial

past, and no longer holds valid in the context of modern notions of

governance, administration, transparency and accountability.

29. Several sections of the media have reported that many principles and

conventions regarding allocation of cases were disregarded. Some reports

suggest that cases that were only part-heard by one bench were abruptly

shifted to another bench.

30. In the circumstances, what were the alternatives for the four judges They

already spoke to the Chief Justice directly, but to no avail. The letter detailing

their concerns which they disclosed after the press conference, had been sent

to the Chief Justice, in November 2017, a few months before they called this

conference. Clearly, these issues were brewing for a long time. They could

have gone to the other judges within the Court, but surely, it would have

created a greater rift. They could have, as a last resort, gone to the President

of India, but I am relieved that they did not, for at any and all costs, the

independence of the institution must always be maintained, and the executive

and legislature should be kept out of judicial affairs.

THE IMMEDIATE TRIGGER

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31. Although they did not say it in so many words, it was clear that the

immediate trigger for the press conference was a meeting held with the Chief

Justice earlier that day, regarding the allocation of one particular case -

involving a deceased judge of a special CBI court, Judge BH Loya - to a

particular bench.

32. Judge Loya was presiding over the Sohrabuddin Sheikh case, and died of a

heart attack in December 2014 in Nagpur. While the Sheikh case is a

complex and convoluted matter in itself, Judge Loya’s death and the case

filed thereafter is backed by its own set of conspiracy theorists. Was there an

attempt to pressurise the judge in making a decision in the Sheikh case? Was

he offered bribes? Was it the court’s duty to inquire into his death? And so

on. Many unanswered questions exist, and while it is a digression likely to be

of much interest, I need to return to focus on the issue I began with, that is,

the immediate trigger for the press conference.

33. According to the four judges, they were concerned about the bench to which

this case was allocated to, which was contrary to roster and convention.

34. After the press conference, the Chief Justice made public the roster for the

Supreme Court. On the face of it, it is a step towards transparency. But on

closer observation, a few concerns emerge. For example, he has kept all the

PILs to himself, except social justice. As a result, all PILs, the appeals/SLPs

against orders passed by High Courts in PILs will also go to the CJI, or the

CJI will allot it to a bench of his choice. That is the essence of the roster

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which has been declared. More importantly, all accountability matters have

all been kept with the CJI.

35. In the present scenario, in the roster made public, we see that all four judges

who made this public declaration are kept out of all important matters, be it

the Ayodhya case, the Aadhaar matter, or the land acquisition row. While it

is true that seniority is not the sole criterion, but seniority does matter.

36. From my experience, for example, whenever a new judge comes in the court,

they remain quiet, at least for a while. Even when sitting in hearing, they

mostly tend to agree with the senior judge who is with them on the bench.

The expectation of both the senior and the junior judge is that the senior

judge at least would have been there for a few years, and would have some

experience. The junior judge would bring a complementary perspective of

new views. The implicit understanding is that experience matters. This is

how you get plurality of views in decision making.

BEST PRACTICES FROM AROUND THE WORLD

37. Throughout the world, judiciaries in other countries have evolved principles

of neutral case assignment, and fairness, transparency and accountability in

judicial procedure to strengthen their judicial institutions. India can only learn

from these things.

38. What is neutral case assignment, you may ask? As Professor Petra Butler

describes it,2 it is a system designed to prevent the risk of judicial panels

being packed, or to prevent the risk associated with the perception that panel

2 Petra Butler (2003), Assignment of Cases to Judges, Victoria University of Wellington

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packing may have occurred or may take place in the future. It involves

making decisions for assignment based on principles of neutrality,

impartiality, transparency and collegiality or consultation. Why is neutral

case assignment important? She gives four reasons, which are useful to

replicate - first, courts are protected from intervention in the quest for justice.

Second, it bolsters public confidence in the impartiality and independence of

the judiciary. Third, it assures litigants of equality and fairness, in that

everyone has the same chance of getting a judge favourable or unfavourable

to their cause. And fourth, it ensures that basic rights and freedoms are not

compromised.

39. Of these, the importance of establishing and retaining public confidence is

often misunderstood or miscalculated. In the 2002 US case of Grutter v.

Bollinger,3 one issue was whether the panel the judges were sitting on had

been packed. The dissenting judge made the acute observation that “unless

we expose to public view our failures to follow the court’s established

procedures, our claim to legitimacy is illegitimate”. It would be heartening to

see our judiciary pay equal importance to these questions.

40. In the United Kingdom, the practice of case assignment has developed

through custom and convention, with a very strong emphasis on a “culture of

trust”. This culture of trust is so strong within the judiciary, that the values of

impartiality and internal judicial independence appear to have been

internalised. The process of allocation of cases has some structure, but also

allows for discretion. The Registrar assigns cases to panels on a random

3 (2002) 288 F 3d 732 (6th Cir), dissenting judgement, Batchelder, J.

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basis. But the ultimate authority lies with the President and Deputy President

of the court. These two, however, do not act as if they have unlimited

discretion, and they use a consultative, flexible and open approach to case

allocation - the operative word here, in my opinion, being consultative. As a

result, it has become a matter of convention that other judges in the court are

consulted and provide feedback on the constitution of panels.

41. This is further accentuated by the conventions evolved around bias, and

perceptions of bias. The general principle is that wherever a fair minded and

impartial observer would consider there to be a real possibility of bias, the

judge concerned must recuse, as concluded in Porter v. Magill.4 Further, if

there is a real ground for doubt in any case, that doubt should be resolved in

favour of recusal.5

42. This notion of convention dictating judicial practice in matters of assignment

is followed in other commonwealth countries as well, such as Australia and

Canada but with stricter norms governing convention.

43. For example, in the High Court of Australia, the Chief Justice “proposes” a

roster for each sitting. The power of assignment exercised by the Chief

Justice is not determinative in any way, but merely recommendatory. It also

relies on convention, and like the UK principle, a judge is disqualified if a

reasonable person may suspect that the judge might be unable to bring a

completely impartial mind to bear on the subject of the litigation.

4 [2001] UKHL 675 Locabail (UK) Ltd Regina v. Bayfield Properties Ltd [2000] 1 All ER 64

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44. In the United States Courts of Appeal, case assignments are random, and are

separated from panel selection, to maintain integrity in the process. The US

Supreme Court itself sits en banc and is not, therefore, a suitable comparator,

here.

45. An alternative to convention dictating norms of case assignment is to have

clearly defined rules, as is the case in Europe. The European Court of Human

Rights, for example, has its Rules of the Court that set out how cases are to be

allocated. Seniority and rotation or drawing of lots is the usual process. This

process recognises that seniority bestows certain rights. At the same time, the

rules offer a neutral filter, because they create clear and accountable methods

that spread the workload and minimise arbitrariness. The ECHR’s Grand

Chamber, for example, as per the relevant rule 24(1), will comprise the

President, the Vice Presidents, Section Presidents, and eleven other judges

and substitute judges chosen by drawing lots.

46. The European Court of Justice also has elaborate rules, in similar fashion.

Benches follow the principle of seniority, with the President, Vice President

and Chamber President automatically included, and other members chosen

either according to simple seniority, or the principle of “seniority alternating

in reverse order” (in other words, the first on the list is the senior most, the

second on the list is the junior most, and so on).

47. It is clear that clear rules and convention are followed everywhere in

administrative matters involving the court. These are scrupulously observed

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in order to preserve the integrity of the judiciary as an independent and fair

institution. An environment of trust envelops the entire process.

48. In contrast, having, or claiming to have, unbridled power as master of the

roster can be a dangerous thing. Take for example, a report prepared by a

delegation of the International Bar Association, on judicial independence in

Russia. The delegation noted that, “there does not seem to be any system for

ensuring that cases are allocated according to objective criteria” in that

country. Further, the delegation said that there was anecdotal evidence to

suggest that particular cases were allocated by the Chief Justice to judges

more likely to deliver “desired” verdicts, or that cases were transferred in the

middle of proceedings because the judge concerned refused to be influenced.

NOT WITHOUT PRECEDENT

49. To return to the Indian story, sadly,this is not the first time that allegations of

lack of transparency and fairness in managing the roster have emerged over

the past few months, spanning the tenure of multiple Chief Justices.

50. A letter written about a year ago to the CJI asked him to permit a probe into

the suicide note written by the former Arunachal Pradesh Chief Minister,

Kalikho Pul, who committed suicide in 2016, after the Supreme Court

restored the ousted Chief Minister, Nabam Tuki, to office. Without going into

too many details about the case, which also included questions of conflict of

interest, Pul had made certain allegations about sitting Supreme Court judges,

including the sitting Chief Justice.

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51. As per the Supreme Court’s decision in the K. Veeraswami case, criminal

proceedings against a judge belonging to the higher judiciary could only be

initiated in “consultation” with the Chief Justice of India. The judgement also

said that if the CJI thought that criminal proceedings should not be started,

they had to be dropped, and if allegations were made against the CJI directly,

then such permission may have to be sought from other Supreme Court

judges.

52. When no investigation was made into the allegations of Pul’s suicide note, his

wife wrote to Justice Khehar asking for his permission to file an FIR against

the judges mentioned in the note, in accordance with the Veeraswami case.

53. In response, the Chief Justice listed Pul’s wife’s letter as a writ petition

before a bench comprising judges relatively lower in order of seniority. Pul’s

wife withdrew her petition before any decision could be made, apparently

unhappy that her specific request for an administrative decision was ignored,

and was instead converted into a writ petition to be decided by the judicial

side.

54. While the four judges did not refer to Pul’s case, in a letter sent to the Chief

Justice some months before they held the press conference, they did draw

attention to the case of R.P.Luthra vs Union of India. This case requires a

little bit of context. In December 2015, a Constitution Bench of the Supreme

Court had struck down the National Judicial Appointments Commission

(NJAC) law as being unconstitutional, but had also directed the Centre to

revise the existing Memorandum of Procedure, or the MoP as it is known,

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for the appointment of judges. In the light of this decision, RP Luthra

petitioned the Delhi High Court arguing that appointments made after this

December 2015 decision were null and void, pending the finalisation of the

revised MoP. After failing at the High Court, he appealed to the Supreme

Court. There, a two-judge bench agreed with the High Court rejection of

Luthra’s petition, but asked the Centre to explain why the MoP had not been

finalised as yet.

55. The four judges, in their letter to the Chief Justice, said that a two-judge

bench could not have dealt with a matter that was already decided by a five-

judge Constitution Bench, and that only a bench of similar strength could

have considered the matter. Besides the allocation of the case to a 2-judge

bench, and the events that occurred thereafter, the MoP is going to be a

crucial test for the office of the Chief Justice, whether it is this one or the

next.

56. Finally, there is the case involving multiple medical institutions that were

originally barred by the Centre from admitting medical students following a

report from the Medical Council of India that these institutions failed to meet

required criteria. Subsequently, some of these institutions moved various

courts, including the Supreme Court, and obtained orders to continue

operations. The criminal complaint in the corruption case alleged that a

conspiracy was hatched by certain persons, including a former Odisha High

Court judge and a hawala dealer, to allegedly bribe Allahabad High Court and

Supreme Court judges who were hearing the case. Chief Justice Misra

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himself was leading the Bench which had heard and decided the case of one

particular medical college in question.

57. The petitioner alleged that the Central Bureau of Investigation, or the CBI

was likely to misuse the material, and judges could be brought under

pressure, and asked that a Special Investigation Team be instituted to look

into the matter. Justice Chelameswar, who was heading a two-judge bench

hearing the petition, directed that it should be decided by a bench of five

senior-most judges. The Chief Justice, in response, declared himself to be the

“master of the roster”, holding that there could be no “kind of command

directing the CJI to constitute a Bench”. In other words, it was declared that it

is the prerogative of the Chief Justice of India to decide what case has to be

heard by which judge. The petitions in question were assigned to other

benches, and both were subsequently dismissed, with petitioners being

slapped with a cost of Rs 25 lakhs for pursuing what the court termed

frivolous and contemptuous litigation. The judiciary’s proclivity to use

contempt as a tool to silence naysayers requires a conversation all of its own,

which I shall not digress into here.

MASTER OF THE ROSTER

58. The question that arises in the present context is whether this power of being

“master of the roster” is unfettered and can be exercised without due attention

being paid to convention or transparency and fairness.

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59. I would like to stress that I am not - in any way - suggesting that seniority

should have been the criteria for allocation of cases, but the fact that all four

of the top five judges of the Supreme Court, other than the Chief Justice, have

been curiously kept out of all constitutional matters, is surely strange and

something to be questioned.

60. Surely it is the duty of every Chief Justice to aspire to protect fundamental

features of the judiciary. There are robust practices that are followed in many

High Courts in India itself, which can be used as examples. For example,

Chief Justices of High Courts normally decide benches in advance, taking

into conscious consideration relevant factors such as the ability of the judges

and their previous experience in handling certain kinds of subject matters.

Division Benches are always headed by senior judges, and it will never

happen that a senior judge is sitting in a roster of lower importance, while a

junior judge heads a Division Bench. The objective of the Chief Justice, in

managing the roster, is to strike a balance between disposal of cases, and

maintaining the integrity and independence of the institution and the quality

of justice that is meted out.

61. What is to happen when a Chief Justice does not adhere to these principles?

Does being “master of the roster” mean that such a person remains

unaccountable and cannot be questioned?

62. The present Chief Justice’s actions may have been exercised in individual

capacity, but are indicative of a deeper malaise affecting the Indian judiciary.

Any educated observer will have noticed that the Supreme Court has, to use

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Shekhar Gupta’s phrase, “ring-fenced, if not quarantined itself”.. This opacity

has not developed by circumstance, but is a pro-active construct of the

judiciary itself, reaching its apogee, perhaps, in denying the application of the

Right to Information Act to itself. For many decades, the judiciary has hidden

behind a mask of constitutionalism, defending its silence as an intrinsic

feature of the its institutional integrity and role as a constitutional authority.

But such a display of silence and integrity comes up short when it is at the

cost of the rule of law, and principles of transparency and accountability.

63. There is little that outsiders can do to persuade this arm of State to open up.

Ultimately, the desire to be transparent and follow principles of rule of law

and natural justice must emerge from within the institution itself. That is what

has happened with this press conference.

64. The most immediate - and most appropriately positioned - constituency to

question the judiciary’s behaviour over the past few decades is the Bar. The

leaders of the Bar ought take more proactive steps towards pushing for

reforms in the judiciary, especially in introducing transparency, in asking the

judiciary to open up about allocation of work. They can play a much greater

role than they have played to date.

WAY TOWARDS REFORM

65. I believe the Indian judiciary has much to learn from many places - from

other courts of the world, or even from within the Indian judicial system

itself. Whether it is developing a strong culture of trust and consultation like

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the English, or building a clear, transparent, seniority- and rules-based system

of allocation like the Europeans, or avoiding the ad hoc-ism of Russia, we

have a lot to learn and adopt and evolve for ourselves.

66. Similarly, we need to introspect and reflect on what our own judicial system

has evolved into.

67. In a system that is built on the idea of the separation of powers, each branch

of the state feels that it operates in perfect internal balance. Indeed, in India,

the threat to judicial independence is most commonly seen as one emerging

from the executive branch, and occasionally the legislature. Today, we have a

situation which was foreseen many decades ago, by Chief Justice Y.V.

Chandrachud, when in 1985 he observed, “There is greater threat to the

independence of the judiciary from within than without...” Mind well, these

threats many a times are orchestrated at the behest of the executive.

68. Do not mistake all that I have said over this past hour or so as mere criticism.

Instead, you must realise that I am pointing to an opportunity that lies ahead

for the judiciary. If anything must happen as a consequence of this

unfortunate incident, it is reform. The judiciary needs immediate reform on

multiple fronts. Why, for instance, is the issue of applicability of RTI to the

CJI still pending for the last 10 years after the decision of the Delhi High

Court? And surely, the time has come to do away with the collegium system,

and relook at the opaque system that the judges have constructed for

themselves. And most certainly, this is an opportunity to introduce reform in

the allocation of cases. The role played by the CJI as master of the roster

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should be more consultative process than it is today. Perhaps the Supreme

Court can consider framing rules along the lines of the ECJ and ECHR. A

healthy balance of senior and junior judges is also desirable, as I discussed

earlier. There must also be efforts made to democratize the position of the

CJI and High Court Chief Justices. They all enjoy immense powers in the

courts, as their roles are structured today. It would be wonderful if the present

CJI would take up these issues. In any case, Justice Gogoi has raised some of

these questions, and if he is indeed next in line to the office of CJI, he must

use his time to change these processes.

69. India has been fortunate to count amongst its public intellectuals, women and

men who have been fine lawyers and judges, who understand and appreciate

the many facets and nuances of judicial independence, transparency and

fairness. In their hands, I know that the judiciary will not be allowed to

implode or compromise on its integrity. In the hands of a probing and critical

fourth estate, I know that the judiciary will be compelled to stand up and play

its role as the upholder of constitutional values to its fullest and truest

standard. In the hands of the people of India, I know that the judiciary will

remain the most important and trustworthy institution this country has known

in its modern history. Now, all I can ask you all to do is to live up to your

respective roles with complete and utter sincerity.

Thank you..

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