Conventions to counter bias of judges have become diluted in the past two years, writes Arun Shourie

Public disclosure by the senior-most judges of the Supreme Court in January 2018 gave us a glimpse of what has been happening inside the court, and it awakened us to another source of mischief that had crept back in. That like the rest of us, judges have predilections is well-known, and in a sense quite natural: to take an example from far away, some judges of the US Supreme Court have been “strict constructionists” – you had to prove everything to their satisfaction from the plain words of the Constitution itself; others, equally distinguished, were more expansive in their interpretations. In India also, especially from the 1970s onwards, while most judges would go back to the plain text of the Constitution, some felt it their duty to read deeper and wider meanings into the text – witness the way the ambit of Article 21 was expanded in the ensuing years.

Those who saw themselves as “progressive” felt that they had not just the right but a mandate to change the way the Constitution had been interpreted: one judge of the Supreme Court, Justice DA Desai, went so far as to proclaim that he had joined the system so as to wreck it from within.

These differences in perspective translated into specifics. Some judges were almost self-consciously pro-labour – “Bonus is a deferred wage”, and others were conservative. Gautam Bhatia reminded us recently that in the first decade of the new millennium, one bench of the Supreme Court confirmed almost all the death sentences that came to it in appeal while another bench commuted almost all the death sentences. Therefore, the impression got around that the outcome would not depend so much on the facts or even the law as on the bench before which one’s case landed. The lemma was ineluctable: many a litigant did whatever he could to deflect his case to one bench and keep it away from another. The registry of the court and the Chief Justice’s office became the focus of special deference and attention.

To counter this practice, methods and conventions developed. Benches would be formed subject-wise –the background of the judge, if he had acquired special competence in a particular branch of law, for instance, would naturally be one of the considerations in constituting the subject-wise benches. As cases came up, they would in the first instance be channelled to the set of benches that had been assigned the general area of law in which the case fell and, in the second step, within that set of benches the case would be assigned to a particular bench at random, “by the computer” as the practice came to be known.

Other conventions also evolved. Sensitive cases – like those involving interpretations of the Constitution or those involving holders of high office – would be assigned to larger benches, and these benches would be manned by senior judges.

Similarly, once some judges had begun hearing a case, it would not be snatched away from them and assigned to some other set. If a bench maintained that the case ought to be heard by a larger bench, it would be referred to a larger bench. And those judges who had been hearing the case in the first instance would be included in the larger bench. Decisions handed down by larger benches would be adhered to as precedents by benches consisting of fewer judges. Smaller benches would not reopen a question that had been settled by a larger bench, certainly not merely by remarks made in passing: I remember well how in his judgment in the Minerva Mills case, Justice PN Bhagwati criticised the way in which deliberations and drafting in the case had proceeded – the remarks were clearly directed at the way the then Chief Justice, YV Chandrachud, had handled the matter; the executive seized upon these remarks and sought to use them to reopen cases of foundational importance. But such instances were rare, and, as happened in response to Minerva Mills, they always triggered a strong reaction within the legal community. In recent years, the conventions have got diluted.

Perhaps the convention that has suffered the most is that of smaller benches adhering to what larger benches have held. Apart from some viewing themselves as “progressive” and, therefore, having a duty, so to say, to change the direction of rulings, there is by now such a plethora of judgments, and so many of the judges have been so prolix, that it has become easier and easier to find the passage one requires for buttressing the position one has set out to affirm. This has compounded uncertainty.

But in the last two years, mere uncertainty has given way to apprehension that a pattern is afoot. Sensitive case after sensitive case – in particular, cases in which the current rulers have had a stake – have come to be assigned to a bench headed by a particular judge.

Cases that were part-heard have been taken away from a set of judges and reassigned to others, often they have been taken over by the Chief Justice himself. Judges who had been hearing the case, and these cases again happened to be ones in which the current rulers had special interest – Justice Gogoi in the instance of the appointment of a director of the CBI, Justices Chelameswar and SA Bobde in the matter of Aadhaar – would suddenly find themselves pointedly excluded from the bench which would henceforth hear the part-heard case. When, say, a bench of two judges felt that the issues in a case were so important that it ought to be heard by a larger bench, the larger bench would indeed be constituted but, in the face of well-settled convention, the new bench would exclude the judges who had been hearing the case. Senior judges in particular came to be excluded from sensitive cases: the Sahara-Birla diaries case was assigned to a bench headed by Justice Arun Mishra overlooking ten benches that had judges who had more experience and seniority – this was a case about which the rulers were deeply apprehensive, for their names, along with those of several other prominent persons, figured as having received huge piles of monies; similarly, the Kalikho Pul case which we have encountered earlier was assigned to a bench overlooking eleven benches consisting of judges of higher seniority and experience.

Worse, senior judges began to be conspicuously excluded even from constitutional cases – Justice AP Shah, the former Chief Justice of the Delhi High Court, gave a telling example: Chief Justice Dipak Misra had constituted constitutional benches in seven cases; each of these was headed by himself, and not one of the four senior-most judges figured in any one of them.

As such occurrences became more and more frequent, an alarming breach, reminiscent of the Minerva Mills episode, occurred in a case. A lawyer, RP Luthra, led a petition in the Supreme Court asserting that he had been deprived of his right to be appointed as a judge of the Supreme Court. He said that as the Memorandum of Procedure for the appointment of judges had not been finalised, all appointments that had been made in the preceding months were void. The case was assigned to two judges. They rejected the claim of Luthra, but in the course of their judgment, they remarked that, indeed, the Memorandum of Procedure ought to be finalised without further delay. But the matter had already been settled by a Constitution Bench of the Supreme Court.

After that judgment, there had been detailed discussions in the collegium of the five senior-most judges. Justice Chelameswar and his senior colleagues wrote to the Chief Justice about this peculiar observation by the two judges to whom he had assigned Luthra’s case. Seven months have passed since the procedure that was finalised was sent to government, they pointed out. Its silence must be construed as consent, and the court must proceed on this basis.

No genius was required to see that the observation that had fallen from the two judges would be grabbed by the rulers to proclaim that, on the saying of the Supreme Court itself, the Memorandum of Procedure had not been finalised. The question would be reopened and the rulers would try a second time within two years to wrest a larger say in the selection of judges.

Two months passed and there was no response from the Chief Justice.

And then the case of Judge Loya’s death in which, the rulers were not just apprehensive, they were mortally apprehensive, was also assigned to Justice Arun Mishra, bypassing all the seniors.

He may have been the most upright of judges but his family’s proximity to the ruling party was well known and, on the incessantly repeated maxim that justice must not only be done but be seen to be done, this seemed just too much to disregard as a mere coincidence. The deflection of this case became the last straw.

The judges were confronted by what Gandhiji used to call “an intolerable wrong”. They had tried other methods – they had written to the Chief Justice, they had met him. To no consequence. They were left with no alternative – they made known their misgivings to the people.

Excerpted with permission from Anita Gets Bail: What Are Our Courts Doing? What Should We Do About Them?, Arun Shourie, HarperCollins India.