Judicial overreach? Rethinking the Supreme Court’s rebuke of a High Court judge

The Supreme Court has passed an unusually strong order in M/S Shikhar Chemicals v. State of Uttar Pradesh & Anr, calling a judicial order passed by a judge of the Allahabad High Court “one of the worst” and stripping such Judge of all criminal jurisdiction.

It further directed that the judge be placed in a Division Bench with a senior judge and not be assigned any criminal work “till he demits office.”

Though the intent appears to be to maintain the quality of judicial reasoning is laudable, the Supreme Court’s approach and usage of phrases and further directions raise serious Constitutional and institutional concerns. The autonomy of High Courts and their judges cannot be undermined by way of such sweeping remarks in judicial orders.

The Constitutional scheme is filled with sufficient provisions to ensure the independence of High Courts. One such Article is Article 235 of the Constitution, which vests administrative control over district courts in the High Court—not the Supreme Court. Similarly, High Court judges derive their independence and authority directly from the Constitution.

Further, it is not out of context to refer to the very words of the Supreme Court which has remarked,

"Independence of judiciary is not only independence from the Executive pressure but also from pressure of superior courts… A High Court judge is not a subordinate of the Supreme Court...the functional autonomy of High Court judges and cautioned against any perception of subordination to the apex court."

The Supreme Court in Tirupati Balaji Developers Pvt Ltd v. State of Bihar (2004) held that: 

“...Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Court both are courts of record. The High Court is not a court 'subordinate' to the Supreme Court.”

In the Shikhar Chemicals case, the Supreme Court not only reversed the High Court’s order, but publicly castigated a sitting High Court judge and issued administrative directions against him, bypassing the Chief Justice of the High Court’s discretion. Such action also raises an important question on the limits of the Supreme Court's jurisdiction, as the order directs,

“The Chief Justice shall immediately withdraw the present criminal determination from the concerned judge...He shall not be assigned any criminal determination till he demits office.”

Under the Constitutional scheme, the Chief Justice of the High Court is the “master of the roster”. In State of Rajasthan v. Prakash Chand & Ors (1998), it was held that the Chief Justice of the High Court alone has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted. This view was echoed by the Supreme Court in Shanti Bhushan v. Supreme Court of India (2018), and a similar view was expressed by the Karnataka High Court in State of Karnataka v. B Krishna Bhat (2001).

Further, it is to be noted that administrative control over High Court judges rests with the Chief Justice of India (administrative side) and the Collegium, and not with any other judge of the Supreme Court.

In view of the same, the whole order in the Shikhar Chemicals case appears to be against the well-settled law and practice set by the Supreme Court itself.

A much more important issue is whether the Supreme Court can publicly humiliate a sitting judge of the High Court in the name of judicial discipline. It is understood that the Supreme Court is also the court of final appeal and High Court orders are challenged before it. In the process of scrutiny of the High Court’s order, the Supreme Court sometimes sets aside the order and also corrects the error committed in such orders. However, it is desirable to limit such interference to criticise the judgment or the orders of the High Court and not extend the criticism to the judge. It is highly undesirable to call any order “a mockery of justice” or questioning whether it was passed due to “extraneous considerations or sheer ignorance”, because the same borders on institutional disrespect. 

The Supreme Court cannot forget the fact that there is a big difference between “judicial errors” with “judicial misconduct”. Being the highest court, the Supreme Court should have exercised judicial restraint in the present case.

In re: C S Karnan (2017), where a sitting High Court judge made derogatory remarks against other sitting judges, the Supreme Court remarked,

“… the manner in which such allegations are made public, certainly would have some adverse impact on the reputation of the individual judges against whom allegations are made, the image of the Madras High Court and perhaps is likely to undermine the credibility of the judiciary in this country...”

The Supreme Court has clearly opined that making allegations against sitting judges will affect their reputation and the judiciary in this country. The public humiliation faced by the judge of the Allahabad High Court is nothing less than what is cautioned against by the Supreme Court in the case of C S Karnan.

The latest trend of weaponising appellate jurisdiction for administrative control is dangerous as every High Court order can be questioned before the Supreme Court and every bad order has a risk of public humiliation of the judge who passed such order. This undermines judicial independence and also the structural balance of institutions under the Constitutional framework.

That does not mean that there cannot be checks and balances in the constitutional framework. If it is found that a particular judge is consistently passing erroneous orders, then the issue can be referred to Chief Justice of the High Court, the Chief Justice of India and also to the Collegium. Further, in most of the cases, just a friendly call to the concerned judge from Tilak Marg, New Delhi would suffice.

The Shikhar Chemicals judgment can be justified on legal grounds, but lacks maturity when it comes to mutual respect of the Supreme Court and the High Courts. While it is important to correct certain orders/judgments, such correction should not become overreaching, setting a precedent that could chill judicial independence across High Courts.

The maxim 'criticise the judgment, not the judge', is equally applicable to the courts.

Praveenkumar Hiremath is an Advocate practicing before the High Court of Karnataka.