Black-letter days in the SC

Fali S. Nariman

“IT  was the best of times.  It was the worst of times.  It was the age of wisdom, it was the age of foolishness." These now-famous opening lines in the novel of Charles Dickens (The Tale of Two Cities) accurately sum up the recent distressing events in India's Supreme Court. 

On November 9, 'judicial indiscipline' was set in motion with an order, sought on behalf of a petitioner before a two-judge Bench — presided over by the current seniormost Judge of the Supreme Court, next only to the CJI.  The order that was passed that day was reported on the front page of the November 10 issue of The Tribune, viz that Court No. 2 in the Supreme Court of India had issued notice on the plea of the writ petitioner for a probe by a Special Investigating Agency (SIA) in matters concerning admissions to medical colleges, and had also posted the writ petition for hearing on November 13, with the additional specific direction that the petition would be heard by a Constitution Bench consisting of the first five seniormost judges of the Supreme Court of India. 

On Saturday November 11, The Tribune reported (again on its front page) events that occurred in Court No. 1 on Friday, November 10, before a Constitution Bench set up by, and presided over by, the CJI.  The headline accurately described the details that were unfolded in the report: "Fissures in Judiciary as 'master of roster' CJI asserts authority: overturns 2-Judge order on Constitution Bench".  The question in the minds of all readers was whether something had gone wrong in the Supreme Court.  Yes - it had! 

As was reported in another national daily, the Chief Justice of India, heading the Constitution Bench of the Court on November 10,  had said: "There cannot be any kind of command directing the CJI to constitute a Bench.  That authority is the CJI's domain.  The CJI is master of the roster and any order passed by any judge allocating a matter to any Bench will not hold."  The oral statement, as reported, is an accurate summing-up of the true legal position.  Hearing this statement, senior counsel for the petitioners then reportedly said: "Your Lordships can pass an order without hearing me…." In that opening sentence, Senior Counsel, too, had accurately stated the correct legal position!  The order passed by the Bench of two judges, being entirely without legal authority, it could have been set aside even without hearing any one.  It should have been, but it was not; hence the further complaint of Senior Counsel: "You have heard persons who are not parties in the case for an hour.  If your Lordships want to pass an order without hearing me then do it….", after which Senior Counsel walked out of Court.  What began as an exhibition of judicial indiscipline on November 9 ended in judicial chaos on November 10. 

Courts in India, particularly the High Courts and the Supreme Court, euphemistically described as 'the higher judiciary', operate on the principle of precedent.  A Bench of two judges, either in the high court or in the Supreme Court, cannot in law overrule or set aside a decision or an order passed by another Bench of two judges - that requires a three-judge Bench (or a Bench of more than three judges).  This is because, unlike the US Supreme Court, our Supreme Court (as well as all our high courts) do not sit en banc (ie all together in full strength); they sit in Benches of two, three, five and so on; such Benches are constituted from time to time by administrative orders that are passed, and that can only be passed, by the Chief Justice of the Court (be it of a high court or of the Supreme Court of India).  No other judge ('puisne judge', as he or she is described) has the power or authority to constitute a Bench, or to direct that a particular matter be heard by that or any other Bench.  This is the prerogative and function solely of the Chief Justice of the Court.  

As to the contention of the petitioner that the CJI should not participate in the hearing of the matter on merits because of conflict of interest, subsequent events have overtaken this plea.  The contention has become irrelevant with the announcement on the evening of Saturday, November 11 by the office of the Supreme Court Registry that the petition (initially moved in Court No. 2) will be now listed for hearing on November 13 before a Bench of three judges constituted by the CJI, a Bench which does not include the CJI.

There remains however the all-pervading question on which the Editor has asked me to comment: "Was there not a marked absence of judicial temper and rectitude?"   There was.  In all these proceedings, whether on the first day or on the second day, there was definitely a marked absence of "judicial temper and rectitude", both on the part of lawyers as well as on the part of judges.  

Thurgood Marshall, American Civil Rights Lawyer, writing in The Chicago Tribune (August 15, 1951) — long before he became the first African-American judge to sit on the US Supreme Court (from 1967 to 1991) — had said something extraordinarily wise, which all our judges (and lawyers) must always keep in mind: 

"We must never forget that the only real source of power that Judges can tap is the respect of the people."

The incidents of November 9 and 10 (Black-letter days for the Supreme Court) have affected the respect the people have for the courts.  If Judges and lawyers do not remember this, a vital institution of State will get undermined!  WE — judges and lawyers together — must prevent this. 

The writer is an eminent jurist and a former MP