The crisis in the Supreme Court will not just blow over. Staying silent is not the answer

Among the 18 guidelines for judges highlighted in his work Things Necessary to be Continually Had in Remembrance, Sir Matthew Hale, the celebrated chief justice of Britain’s King’s bench between 1671 and 1676, said that justice must be done “uprightly, deliberately and resolutely”.

It has been a week since four senior judges of India’s Supreme Court – J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph – addressed an unprecedented press conference in Delhi, expressing their displeasure at the way cases were being allotted. The country, however, is still in the dark on what the response of the chief justice of India, Dipak Misra, has been to the points raised by his colleagues.

These were not judicial proceedings. But in bringing their grievances to the people’s court, the judges, who are used to delivering justice, became seekers of justice from the first among their group. What was expected was a deliberate and resolute response that was also upright and open in its make.

Instead, the week gone by has seen clear attempts to paint this crisis in the apex court as an internal affair of the judiciary. The result is that the institution has been dragged back into the opaqueness it is used to. The potential of the press conference to become the beginning of a deep introspection and structural reform is now withering away.

Hectic week

On January 12, the four judges raised objections to the manner in which the chief justice has been allotting cases to the Supreme Court’s many benches. They claimed cases of national importance were being given to benches the chief justice preferred. Questions were also raised on the judicial orders these benches delivered, most notably one in October in a case involving the memorandum of procedure for judicial appointments, which the four said they assumed had been settled when it was finalised by the court in March.

There was also the nature of the court’s response to the case of Maharashtra judge Brijgopal Harkishan Loya’s death. Loya had died in December 2014 when he was hearing the case of the alleged extrajudicial killing of Sohrabuddin Sheikh, in which Bharatiya Janata Party chief Amit Shah was an accused. Loya’s family had expressed doubts about the circumstances of his death and sought an investigation, though they later said they no longer harboured any suspicions. On Wednesday, Justice Arun Mishra, whose bench was hearing petitions seeking an investigation into the matter, recused himself from the case.

A day after the press conference, the prime minister’s principal secretary, Nripendra Misra, “dropped by” Chief Justice Dipak Misra’s house. The chief justice did not meet him, though, and the officer left a card with new year greetings with his staff. The visit prompted the Congress to call this an attempt by the executive to interfere in the judiciary.

Matters then went back and forth. Media reports said that when the full court met for tea before the start of proceedings on January 15, a junior judge confronted the four judges for their open dissent. This meeting was expected to break the ice and facilitate conversations between the judges. There were other judges too who got involved, trying to work out a solution.

The chief justice, on his part, met the four dissenting judges twice over the week. But nothing substantial seems to have come out of these meetings. On Thursday night, Chelameswar left for Chennai, making any breakthrough over the weekend improbable. At the same time, he said the crisis cannot be allowed to linger for too long.

In the dark

Several questions arise in the way the matter has progressed. First, should such unprecedented developments in the Supreme Court be dealt with as an internal problem of the judiciary?

The points raised by the judges are being seen as questions on the administration of the court. In the Supreme Court, there is a clear division between its administrative and judicial functions. The judicial functions, in the form of delivering justice through adjudicating on disputes, is done openly. The administrative function, especially of the chief justice, is carried out behind the scenes.

But the matter raised by the four judges belongs to an area where the judicial and administrative functions of the court intersect. When they stated that chief justices were allotting cases to the benches they preferred, and subsequently referred to problems in specific cases and orders passed in them, they were pointing to the impact of the court’s administrative decisions on its judicial functions.

How can questions with such a profound effect on the delivery of justice be summarily dismissed as an internal matter? It is the constitutional right of every citizen to approach the courts to enforce their rights. Therefore, it cannot be said that citizens do not have the right to know how decisions that affect justice delivery are made.

Even if this line of argument is not accepted, what cannot be disputed is the fact that the moment the four judges came out in public, the matter ceased to be internal.

While on the one hand the chief justice has maintained a stoic public silence despite fingers being pointed directly at him, the four judges have also not been forthcoming on what has transpired since they went public with their grievances. Given that neither side has come out with any statement, nor has there been any change in the manner in which cases are being allotted, it is fair to assume the stalemate persists.

It is no one’s claim that efforts are not being made to solve the crisis. They could very well be in progress. But the opaqueness of the process means the people do not know what is happening. Often, when contempt of court cases are heard by the High Courts and the Supreme Court, the judges hold people guilty by stating that their actions have hurt the image of the judiciary and undermined the dignity of the court. To let speculation rule the roost in a matter of such seriousness also undermines the authority and dignity of the judicial system.

The position of the Supreme Court as the ultimate guardian of rights means it cannot ride a storm of this import on silence and hope the dust will eventually settle. To be “deliberate and resolute”, its decisions must be transparent.