COMMENTARY
Crises in the Judiciary
Restoring Order in the Courts
Alok Prasanna Kumar
The press conference organised
by four senior-most judges of the
Supreme Court was a result of
a long period of dissatisfaction
over the way the institution
was functioning. The problems
are systemic and will require
more than a short-term fix. The
Supreme Court and the judiciary’s
credibility have taken a battering
over the last decade for many
reasons, and the press conference
is an acknowledgement to some
extent of the rot within. What
happens next is not very clear, but
the status quo cannot continue.
Alok Prasanna Kumar (alok.prasanna@
vidhilegalpolicy.in) is senior resident fellow
at the Vidhi Centre for Legal Policy, and is
based in Bengaluru. He is also a member of
the Executive Committee of the Campaign for
Judicial Accountability and Reforms.
10
T
he importance of the epoch-mak-
ing press conference organised
by the four senior-most judges of
the Supreme Court of India on 12 Janu-
ary 2018 cannot be overstated. They
have, bypassing the demands of conven-
tion and tradition, come forth into the
public space and aired their grievances
against Chief Justice of India (CJI) Dipak
Misra, specifically the way in which he
has exercised his powers to allocate
benches to hear certain cases. Most ex-
traordinarily, they have claimed that
this, if not checked or rectified, could
put democracy itself in danger.
This press conference presents, in
many ways, a breaking point for the four
senior-most judges of unquestionable in-
tegrity, for the institution of the judici-
ary, and for India’s constitutional system
of governance. It is a reaction of not just
the four individuals in question; this
has nothing to do with any personal
grievance they may have. In choosing to
come forth and put their reputations and
careers on the line by taking their griev-
ance to the public, Justices J Chelameswar,
Ranjan Gogoi, Madan Lokur and Kurien
Joseph have performed stellar service to
the nation. In understanding why this is
so important, it is necessary to remember
how things got to this point and what
happens next. Though there were, no
doubt, proximate causes that explain why
the judges came forth when they did, a
brief overview of what has happened in
the Supreme Court in the recent past
would show that this was a long time in
the making.
What Just Happened
The Supreme Court of India, as it is and
functions today, is a very different body
from what was envisaged in the Consti-
tution. George H Gadbois, writing in 1967,
questioned claims about the Supreme
JANUARY 20, 2018
Court being “the most powerful court”
in the world, citing its unwillingness to
exercise its powers to strike down laws
made by Parliament and defend funda-
mental rights (Gadbois 2017). It is now
safe to say that having laid down the
“basic structure doctrine” and struck
down constitutional amendments (most-
ly those affecting judicial review and
appointments), and having come up
with the public interest litigation pro-
cess, the Court does truly fulfil the claim
that it is the most powerful constitutional
court in the world.
And, yet, it is also a constitutional
court like no other. It has a sanctioned
strength of 31 judges (including the CJI),
all of whom do not sit together, but do
so in benches of two or three judges,
and more rarely five or more judges.
Inevitably, this means differences in the
approach to jurisprudence and, conse-
quently, the law gets unsettled far more
often than desirable (Robinson 2013). It
also leaves open the possibility of bench
hunting, of parties trying to find ways to
get a case heard by a bench favourable to
their cause. A conscientious and careful
CJI would ensure that such practices are
stopped, and the sanctity of the judicial
process restored. It is for this purpose that,
since the time of CJI M N Venkatachaliah,
listing of cases has been done through an
automatic, computerised process, where-
in cases are allocated to benches relying
on a predetermined set of criteria and in
a randomised manner (Mitta 1993).
Even so, the CJI, as the “Master of the
Roster,” wields enormous discretion in the
matter of allocation of cases to benches.
Not only does the CJI determine which
case will be heard by which bench, they
also have the power to determine the
combination of the judges who will hear
this case. Such power is much wider in
the context of the Supreme Court of
India, which sits in panels of two or
more judges, unlike, say, the United States
Supreme Court, which sits en banc (that
is, all judges of the Court sitting on one
bench for a case), or the Constitutional
Court of South Africa, where, constitu-
tionally, at least eight of the 11 judges are
required to hear a matter.
vol lIiI no 3 EPW Economic & Political Weekly

However, in the last one year or so,
the system has almost completely broken
down. No doubt the routine cases are
allocated on the basis of the existing
rules, but the discretion exercised by the
CJI has become questionable, more so in
high profile and important cases. The
Campaign for Judicial Accountability &
Judicial Reforms (CJAR)1 released a public
statement soon after the press conference,
highlighting recent instances where the
bench hearing a given case was changed
or an allocation was made without
following existing norms (CJAR 2018).
These include the case concerning the
possible bribery of judges by the Prasad
Education Trust, the challenge to the ap-
pointment of the director of the Central
Bureau of Investigation, and the case
concerning the constitutional validity of
Aadhaar. All are high-profile cases, subject
to intense public and media scrutiny, and
involving the highest public authorities.
The timing of the press conference
and the release of the letter that the four
judges had written to the CJI, therefore,
can be attributed to this steady and
worrisome breakdown of all principles
of fairness and justice in listing cases
before the appropriate benches. There
are two broad concerns that the letter
raises. First, at an institutional level, as
to how the absence of transparency in
the way power has been exercised by the
CJI undermines the systems within to
list cases in a fair manner. Second, in the
eyes of the public, if cases concerning
the government or important govern-
ment functionaries are being listed be-
fore a particular bench and the outcome
is always in favour of the government,
this will undermine public confidence in
the judiciary.
It is perhaps not a coincidence that the
press conference took place the day after
the CJI allocated the petition seeking
further investigation into the alleged
unnatural death of Judge Brij Mohan
Loya to a bench headed by Justice Arun
K Mishra. To a pointed question during
the press conference, Justice Gogoi
agreed that the concerns expressed did
relate to the way that case was placed
before that bench (Wire 2018). This
shows the judges’ seeming loss of faith
in the CJI. The Judge Loya case, ever
Economic & Political Weekly EPW JANUARY 20, 2018
since the Caravan exposed the many
unanswered questions about his death
midway during the trial of Amit Shah
for the murder of Sohrabuddin Sheikh
(Takle 2017), presents the judiciary
with one of its gravest crises. Did the
judges think that the allocation of
the case to a bench headed by Justice
Mishra would bring out the truth in the
matter? What they did and said sug-
gests that they did not.
The judges’ letter itself is suitably
vague; it does not mention the exact
cases where they contend that there has
been an unfair or arbitrary allocation by
the CJI.2 This is not necessarily a bad
thing, as going into the details of the
specifics of each case would have dimin-
ished the impact of the move. It would
also have made the grievance too specific
and perhaps missed the systemic nature
of the problem. At the core of the griev-
ance is the unhappiness over what the
office of the Chief Justice of India has
become: an institution with powers vastly
disproportionate to its accountability
(Bhatia 2018).
This is best illustrated in the events
that took place in the context of the
petition filed by the CJAR, seeking a
court-monitored investigation into the
alleged bribery of judges in the Prasad
Education Trust matter (Yamunan 2017).
The full sequence of events need not be
gone into here. However, in asserting his
absolute power as the master of the ros-
ter, CJI Dipak Misra not only discarded
all notion of fairness in the judicial pro-
cess, but also highlighted the complete
lack of accountability for someone in his
position. In a matter where the integrity
of the CJI was in question, to have exer-
cised discretion to decide which bench
will hear the matter sent out every
wrong signal possible.
This was not a one-off matter, as
the above-mentioned illustrations show.
The fact that it was not just one or two
judges, but the four senior-most judges
who came forth suggests that the dis-
content with this is widespread. It is
also not that it is only Dipak Misra’s
conduct that is being questioned. As the
letter makes quite clear, it is the system
which vests such discretion in the CJI
that is under attack, and not just the
vol lIiI no 3
COMMENTARY
fact that one CJI may have misused it
more than others.
What Happens Next
As of going to press, rumours and reports
of conciliatory moves by the CJI and
other judges are being talked about
(Ananthakrishnan G 2018). In a surpris-
ing development, the bench hearing the
petition seeking inquiry into Judge Loya’s
death seems to have backed off from
hearing the case (Balaji 2018). The order
that calls for copies of reports and docu-
ments to be placed on record also ends
with a cryptic note that the matter be
“put up before the appropriate bench.”
Per se, it does not say that the bench
does not want to or cannot hear the
matter, but it is a clear signal that they
would rather not. What happens in this
matter is also not quite clear.
It is a futile exercise to try and predict
exactly what will happen next. It would
suffice to say that the concerns raised by
the four judges are not issues that can
be addressed over cups of tea or through
individual give and take. There are no
easy fixes and there is no external agency
that can bring them together to arrive at
a solution. It must be the judiciary and,
specifically, the Supreme Court as an
institution that must address the issues
raised by the judges in the letter.
Two recent examples might provide us
some insight on the path ahead: the con-
troversy over the transfer of Justice
Jayant Patel from the Karnataka High
Court to the Allahabad High Court, and
the case concerning the procedure for
designation of senior advocates by high
courts and the Supreme Court. In both
cases, the challenges to the correctness
of the actions of the judiciary were from
within the system, from the bar. The
response from the judiciary, as I have
detailed elsewhere (Kumar 2017: 10),
was encouraging. Collegium resolutions
are now being uploaded onto the Supreme
Court website and a proper institutional
framework and clear norms applicable
across high courts have been set up for
the designation of senior advocates.
In both instances, the institution
accepted its mistakes and addressed the
grievance at an institutional level by lay-
ing down new norms, changing practices
11
COMMENTARY

and replacing conventions with rules.
The result was not that Justice Jayant
Patel’s transfer was countermanded or
that certain advocates were designated
as senior advocates. The result was
greater transparency in the working of
the system and rules guiding the sys-
tem’s functioning, as opposed to unguid-
ed discretion. This approach, if followed
in the present crisis, may lead to a satis-
factory resolution.
What will this resolution look like? It
will require the CJI accepting that his
personal discretion in the matter of
allocation of benches will have to end. It
will require that the remaining judges
(including those in line to be CJI) accept
that this is going to be the new normal.
It will require the Supreme Court as an
institution to abandon convention and
discretion, and function like a public insti-
tution that must meet certain standards of
fairness, accountability and transparency.
A resolution of the present crisis per-
haps calls for some statesmanship on
the part of all concerned to put this into
action. This is not just a matter to be
resolved between the CJI and the four
senior judges. It requires the Supreme
Court to convene as a Full Court (with
all the judges present) and put in place
solid institutional mechanisms to con-
strain the CJI’s powers. It also requires the
Supreme Court to take the chief justices of
the high courts into confidence and guide
them to follow their lead on this matter.
It would be extremely myopic to reduce
the present crisis to one of the Supreme
Court alone, or assume that such issues
are not prevalent in the high courts.
At the risk of repetition, it must be
stated that the present crisis is not just
about the composition of a constitution
bench, or who hears the petition in the
Judge Loya case, or the grievances over
the way the Medical Council of India
bribery case was handled. Addressing just
these three instances will not in any way
resolve the underlying causes of this cri-
sis. The true underlying cause of this sit-
uation lies in the fact that the Supreme
Court has long been in denial about the
fundamental change in the nature of the
institution, and the applicability of the
principles that it has demanded adher-
ence to from other bodies.
The average tenure of the Supreme
Court judge has shortened over the years
(Chandrachud 2012: 177). The average
tenure of a CJI does not leave them with
enough time to undertake any serious
institutional reforms. Yet, the Supreme
Court is approached with some of the
most pressing concerns of the day, af-
fects the lives of millions of citizens,
and has the final word on crucial mat-
ters of law and policy. It has become an
institution whose institutional role has
far outstripped its capacity to function
as an institution. It needs to put its
house in order.
Accepting these realities will go a long
way in addressing some of the challenges
that the Court and the judiciary are
facing. By no means will this immedi-
ately solve all problems that are being
faced by the institution. How the Su-
preme Court functions internally is
unlikely to figure in any top-10 list of
the most pressing problems being faced
by the judiciary in India. That said, it
is unlikely that any of the remaining
problems are going to be dealt with if
the underlying reasons for the present
crisis are not going to be acknowledged
and addressed.
Notes
1 The author is an executive member of the
Campaign for Judicial Accountability & Judi-
cial Reforms.
2 The full text of the letter may be accessed here:
https://drive.google.com/file/d/1wmXFvUGYj1-
8EbqkFeDY7SIGCgdO8eM_/view (viewed on
17 January 2018).

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