As one paterfamilias of India’s judicial family handed over the reins to his successor brother and ‘rode’ into retirement, people crowded to chronicle the rather ‘uneventful’ term of Chief Justice Sharad Arvind Bobde. Perhaps when he had himself taken over and given his friendly interviews, playing with his pup, the nation had heaved a collective sigh at the thought that curtains had finally drawn on the tumultuous Gogoi Court.
Ironically, many of those who had sighed at the passage of Chief Justice Gogoi, were ‘sighing’ even more as Chief Justice Bobde hung up his boots.
Truth be told, it takes great tenacity to ensure that one tenure remains “uneventful”, when during one’s stewardship, the world and the nation goes through a pandemic like never before that ravages humanity and destroys the global economy. It takes great talent to remain inert when under your very nose, the constitutional structure of a State is changed overnight and her people sentenced to house imprisonment with the internet - the modern day oxygen in a digital world - shut down. It takes great dispassion to shame even an ostrich when, in front of your very eyes, a great humanitarian crisis unfolds with thousands of migrants walking home barefoot for hundreds of kilometres with little food and water! To preside over a period when journalists and young students are rendered prisoners of conscience and senior law professors are jailed for months on terror charges and yet be unmoved, indeed requires judicial rectitude of a rare quality. It is a rectitude hitherto not exhibited in the public space since our Republic was inaugurated and the top court began its journey from the Chamber of Princes.
I chose to stand away from the crowd of appraisers. What would be the point of a critique on what kind of cases found weight and attention as a world braced itself to face a pandemic of unimaginable proportions and courts went virtual? Whether the good people of Mirzapur stand insulted by an Amazon Original by that name with Pankaj Tripathi putting in an impressive performance? Whether Prashant Bhushan should be hauled and mauled for a tweet with Rajeev Dhawan putting in an equally impressive performance?
What is the Chief Justice Bobde’s legacy? Will the Supreme Court survive it? Let us extricate ourselves from these existential inquiries and simply ask ourselves: Where do we go from here?
While the Chief Justice is not a politician and does not have to make any promise which he does not intend to keep, in this election season, it might not be a bad idea for us to put our heads together to actually come out with a ‘manifesto’ for the Court for the consideration of our new Chief Justice of India!
So this is my two bits. It is a draft and hence tentative. It can only be improved here on forth by the valuable suggestions of all my colleagues -senior as well as junior - from the Bar and even many of our conscience keepers on the Bench!
Crisis of Credibility
For an institution founded on the notion “Justice must not only be done but be seen to be done”, its optics are in shambles. Justices rightly believe that the Court is not into any PR competition. That is true. Yet when cases get listed overnight and orders are passed in lightning speed for certain ‘preferred’ litigants, when certain senior lawyers are able to get matters listed and heard, while cases of dalits, adivasis, tribals, workers and women languish for years, it leads to the Hamlet-esque conclusion that “There is something rotten in the state of Denmark!”
Since the days of the Khehar Court, with the tussle over the hearing of the petition to investigate the unnatural death of former Arunachal Chief Minister Kalikho Pul, the Court has been caught in an unfortunate quagmire where a perception has emerged that the Court is soft on the governing regime. Important challenges to “gamechanger” decisions such as demonetisation, electoral bonds, Farm Laws, Citizenship Amendment Law and destruction of the constitutional status of Kashmir are languishing while, as Dushyant Dave points out, corporate disputes such as the Tata-Pallonji battle get heard and disposed of with alacrity. The fact that such delayed adjudication only benefits the ruling party is not missed. This only leads to whispered unfair speculation as to whether such delay is a part of the Court’s benediction to bail out the regime.
The new Chief Justice of India, though he has himself not come out smelling of roses in the Kashmir internet access case, where the matter lingered on for months until the ball was lobbed back to the executive to itself reconsider its draconian decision, should arrest this perception at the earliest.
All political “gamechanger” challenges should be listed on priority basis akin to criminal cases against politicians which have been fast tracked through welcome judicial intervention. They should be heard on a day to day basis and the challenge decided.
The concept of a Collegium was alien to our Constitution until it was judicially injected via the Second Judges Case. The Court valiantly defended this judicially crafted institution when the other two wings tried to replace it through a National Judicial Appointments Commission. Yet after having done so in one voice, to the surprise of many legal pundits, the Court seemed to have abjectly surrendered to the executive in the combat over finalization of the “Memorandum of Procedure”. While recent judicial intervention in the form of setting timelines for the executive to taken action on the recommendations is welcome, overall the system is in shambles.
If new reports are to be believed, the system of publication of minutes of Collegium meetings was introduced by Chief Justice Dipak Misra to bring Justice Jasti Chelameshwar on board. We have seen how that farce played itself out until the Court itself abandoned it. However, the fact that this was not replaced by greater transparency but by selective leaks of proceedings, did not help the cause of the Court. It undermined its prestige and standing. If the Court could wade into the equally opaque realm of designation of senior advocates and inject an element of objectivity and transparency into the same, why can't this experiment be replicated when it comes to appointments of judges to the constitutional courts?
The dramatic supersessions and reversal of Collegium decisions by the Gogoi Court brought to fore the inherent arbitrariness in the entire process. The new Chief Justice, having inherited unprecedented judicial vacancies at both levels, has an unenvious task of arresting the rapid descent of the Collegium system into total dysfunctionality.
The first step is to set up a task force on a war footing to review the existing Collegium system. This exercise should not be opaque as was the formulation of the Memorandum of Procedure. If required, junior justices of the top court, judges of the High Courts and jurists/senior lawyers should also be co-opted. The time has come to put our legal community’s finest brains to task to formulate a rational and transparent protocol to ensure that our judicial appointments are timely, transparent and representational of our national diversity. This protocol should address the known bottlenecks and thorns in the process which inhibit talented and successful lawyers from the Bar coming forward to give their consent to be elevated. It would have to assure such people that they would not be made to suffer for months, if not years, in a limbo, and be the object of humiliation and speculation.
This is a time-consuming process even if the Chief Justice were to bind such a consultative committee to strict timelines. The most important norm the new Chief Justice must immediately put into place and insist upon is that recommendations for judicial appointments must reach the Collegium at least 6 months before the post would be due to fall vacant. The target should be to ensure that, to the extent possible, no post should remain vacant for the lack of appointment of a successor.
Master of the Roster
In the past, Chief Justices such as SM Sikri, PB Gajendragadkar and even YV Chandrachud have acted on their own in matters of judicial appointments. If that tradition could have been forsaken for collegiality and the power of appointments invested in a Collegium, what is so sacrosanct about the “Master of the Roster”? The alleged abuse of this tradition compelled four senior judges into a press conference and yet, within months, one of them would worm his way back to the shelter of convention and seek out the assistance of forces which had provoked the press conference in the first place!
The new Chief Justice would go down in history if he were to voluntarily submit his Mastery over the Roster to oversight by the next three senior most judges. This committee could decide on the allocation of sensitive matters and constitution of benches.
Every new Chief Justice, for however brief a tenure he may have served, has attempted to leave behind a mark on the system. Many have undertaken administrative reforms, others judicial and yet others both. An aspect which needs crying attention of the new incumbent is the system of listing. High Courts, like Delhi, ensure that every case has a known date of listing. This gives some certainty and assurance to lawyer and litigant alike. Why can't the Supreme Court adopt this and jettison the existing practice of not having fixed dates and matters getting listed at random and also getting removed from the cause list on account of “excess matters”?
Is my manifesto too ambitious and utopian? Perhaps so. Bob Dylan had once said. ”I’m speaking for all of us. I’m the spokesman for a generation”. I ain’t no Dylan, but the “answer is blowing in the wind.’
The author is a Senior Advocate of the Delhi High Court.