BY DR. SURAT SINGH, HARVARD AND OXFORD EDUCATED SUPREME COURT LAWYER

E-MAIL: drsuratsingh972@gmail.com, Phone: +91-9811009460, +91-9810087773

Yesterday’s Press Conference by 4 senior-most Judges of Supreme Court will go as an unprecedented precedent in the history of Supreme Court of India since 1950. It’s easy to judge this action lightly but its importance is of historical proportion. The reasons are as follows:

  1. It brings out the inner conflicts among the Supreme Court Judges themselves in open. This is significant because Judiciary prizes on secrecy and confidentiality. For example- the proceedings of Collegium are not made available to public. On larger scale, Right to information Act, 2005 which is applicable to other wings of the Government hasn’t been made applicable to Judiciary. One of my friends and a courageous Judge of Delhi high court Mr. Justice Ravindra Bhatt showed the guts to decide that Right to Information is applicable to even courts but when the case went to Supreme Court, it didn’t find a favourable response. So, Indian Judges, barring few honourable exceptions, are never tired of preaching accountability, responsibility, fairness, transparency to other wings of the Government. They remind other wings of the Government that one of the cardinal principles of natural justice is that nobody should be Judge in his own case but they conveniently forget the same when it is applied to them.

Only 3 months ago when I was arguing a case in the Supreme Court and I had an honest difference of opinion with the Judge and I raised my voice to express my anger, he didn’t hesitate to remind me about his authority in the following manner, “You shouldn’t think we are powerless or weak. We can send you to jail under contempt of Court for 3 months even without a trial”.

I am sorry to say instead of thinking of doing justice under different circumstances, he was thinking of his power. In a democratic set up, where rule of law and not the rule of men (dominantly) is the guiding principle, power is given to be exercised for public purpose and not for private embellishment.

  1. After 3 Supreme Court Advocate-on-Record Associations in cases, Judiciary has appropriated itself the power to appoint and transfer Judges. In an authoritarian country like India, it was needed for Independence of Judiciary because earlier Judges were very much vulnerable to caprice and whims of Executive (ADM Jabalpur V Shukla case in 1976 Emergency Era). So, it is a good thing that Indian Judiciary has attained Independence unlike our neighbour Pakistan. But at the cost of repetition, I have to remind that the purpose of granting any power under our Constitution is to enable power holder to exercise it in best interests of people of India. But unfortunately, our democratic ethos are so weak and feudal mindset is so powerful that saving few honourable exceptions, whenever power is given in India to a person, he/she treats it as a personal property and not as a trust in public interest.
  2. In Europe and America, there are safeguards of public opinion, citizens’ temperaments, institutional support against any abuse of power. For example- when President Nixon refused to resign after Watergate scandal, almost entire population of Washington DC came out in protests and started honking their car horns to put a pressure. By contrast, in India we have a culture of power worship. Let’s face it, In India we have very few robust citizens, majority of the people are subjects. The culture of sycophancy for petty benefits is far more prevalent than culture of straight forward, truthful action irrespective of consequences.
  3. Time has come to confront the realities of Indian polity and Indian society. Indian Supreme Court has gone through various phases since 1950 till 12.01.18. I divide it in following eras:
  4. a) Nehru Era from 1950-64, where Supreme Court showed too much respect to other wings of the Government.
  5. b) Shastri Era from 1964-66, when under leadership of Chief Justice Subba Rao, Supreme Court became a vociferous champion of Human Rights on the verge of confrontational approach with other wings of Government.
  6. c) Indira Gandhi 1st Phase Era, where Doctrine of Basic Structure was evolved to protect democracy from destruction of basic structure of Constitutional framework.
  7. d) Emergency Era, where Supreme Court except Justice H.R. Khanna caved in before Executive. For example- ADM Jabalpur (1976) where Supreme Court by majority held that only rule of law during emergency is emergency law and Fundamental Rights can be suspended.
  8. e) Post Emergency Era from 1977 till 1992, where Supreme Court started giving liberal interpretation to Fundamental Rights including development of Public Interest Litigation (PIL) allowing access to Courts by less privileged sections of society but the dominance of Executive in appointment of Judges was maintained.

5) Emergence of Supreme Court as author of its own ticket from 1992 till 12.01.18, where with help of 3 Supreme Court judgments, Supreme Court proclaimed itself as ‘Swayam Bhoo’ (Sui Generis) in terms of appointing, transferring High Court and Supreme Court Judges with the help of Collegium system and now we are entering the next stage of demystification of this hallowed institution. Some may call it the age of Self-Awareness or age of maturity, whereby even some of the most venerable Judges of Supreme Court are coming in public about their private grievances. Almost 4 decades ago, my Delhi Law Professor Dr. Upendra Baxi wrote a Book ‘Indian Supreme Court and Politics’. Only naïve, super credulous or first rate fools were believing that Supreme Court was free from politics. If by politics, we mean exercise of power in the name of principles, Supreme Court was doing that from the very beginning. The only difference is now it has come out in open.

After this historical discussion, let me answer the basic question which is the title of the article, “Whether holding a public conference by Supreme Court Judges was wise or otherwise?”

My brief answer is that these Judges took the risk of exposing the internal workings of Supreme Court. It would have been wiser to resolve this issue by internal discussion and dialogues. But if they have chosen to come to the public, then they shouldn’t have come in a half-hearted manner. They should have gone whole hog by pointing out what is ailing our Supreme Court. With great respect, they have hinted at issues of composition of Benches by Chief Justice in violation of healthy traditions but that is only a minor transgression.  Let’s remember that all the Judges of Supreme Court are, more or less, equally competent. So, composition and number of Judges is not what is ailing Supreme Court. It is a minor problem. The major problem is power without accountability.

So, now time has come we should reflect upon the workings of the Judiciary particularly of Supreme Court in best interests of people of India. Supreme Court Judges keep on reminding, while arrogating powers to themselves, that nobody is Supreme but the Constitution is Supreme. But we must remember that the Indian Constitution was adopted in the name of, We The People of India, not in the name of, We The I.A.Ss or We The Ministers or We The Judges of India.

In the final analysis, whether Judges of Supreme Court are doing their job effectively will be decided by whether they are making a genuine effort to use their for public purpose of delivering justice without fear or favour, affection or ill-will  in the best interests of public rather than their private pre-dispositions and prejudices.

So, let the light be turned on the Judges themselves, so that level of Self-Awareness among the Judges is raised. Yes, they should do justice not only to themselves but to the clients who approach the Court as a last resort of hope. To paraphrase much celebrated phrase of Karl Marx, “Till so far, Supreme Court Judges have focused on doing justice to themselves. The need is to turn the focus to do justice to the clients in whose services they are appointed. The need is to transform Judiciary from Court-centred focus to Client-centred focus. It will take more than just holding an isolated, single Press conference”

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