In P.K. Ghosh v. J.G. Rajput (1995), the Supreme Court held, “Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done.” In its own words, the Supreme Court has been assigned the role of a “sentinel on the qui vive ” as regards fundamental rights. The right to get redress from the Court is itself a fundamental right, and the Court cannot abandon its own duty in this regard.
Exercise of power
Since assumption of office by Chief Justice J.S. Khehar in 2017, the Court has increasingly come under the public gaze not for its role as the protector of the Constitution but for its repeated failures. Successive Chief Justices have failed to stop the decline of the Court. With the Court upholding the Chief Justice as ‘Master of the Roster’, in a debatable judgment in 2018, Chief Justices have used their powers to constitute Benches and allocate cases to such Benches in a highly selective manner. This defeats the fundamental principle of the rule of law.
There is no doubt that the Chief Justice must be the administrative head. But he must exercise his powers in a fair and just manner. He must not constitute Benches and allocate cases to those Benches in a manner which tilts the balance in favour of the executive. Decisions in some of the most important matters affecting the nation, the Constitution, democracy, and the people and their fundamental rights have been taken in favour of the executive, such as in the Ayodhya case , the Rafale case , the Birla-Sahara case , and the order for a National Investigation Agency probe into the Hadiya case . On the other hand, the Court refuses to decide on the challenge to electoral bonds , the removal of Article 370 , and habeas corpus cases, among others.
These decisions have all come from Benches constituted by respective Chief Justices. The Supreme Court consists of a maximum of 34 judges although it generally functions with around 30. Yet, constitution of Benches and allocation of cases have left much to be desired in the last five years. For instance, diverse Benches, all presided by Justice Arun Mishra (now retired), were assigned as many as eight cases of the Adani Group.
The outcome of these cases is not the subject matter of this debate. The issue is, does justice appear to have been done? Perhaps, the abject failures of the Court were influenced by different but disturbing events involving these Chief Justices. Former Arunachal Pradesh Chief Minister Kalikho Pul’s suicide note, which otherwise is an admissible piece of evidence, carried serious allegations against “two senior-most judges” of the Supreme Court. Pul’s wife requested an inquiry, which Chief Justice J.S. Khehar and his colleagues stopped. Contrast this with the Supreme Court ordering an investigation by the Central Bureau of Investigation into the suicide of actor Sushant Singh Rajput , where no suicide note was found. The same Court declined to order any inquiry into the demise of judge B.S. Loya , thereby failing to reassure the subordinate judiciary that it stands with it.
Later, the fact that Chief Justice Dipak Misra presided over the Constitution Bench hearing matters related to the medical college scam , despite the FIR naming unknown persons including constitutional functionaries of misconduct, perhaps weakened his authority. Subsequently, many including retired judges have been chargesheeted in that case.
Judge Loya case verdict | Dave’s 11 and court view
Then came the sexual harassment charge against Chief Justice Ranjan Gogoi. Soon after the complainant’s charge, Chief Justice Gogoi, Justice Arun Mishra and Justice Sanjiv Khanna presided over a Bench on a Saturday to condemn the complainant at the instance of the Solicitor General in a matter that they stated was “of great public importance touching upon the independence of judiciary”. The entire judiciary and executive demonstrated their high-handedness in the case. The complainant later withdrew her complaint and the police filed a report saying no offence was disclosed. Another Bench presided by Justice Mishra entertained a strange affidavit from a lawyer and ordered an inquiry by Justice A.K. Patnaik (retired) into the charge of attack on the judiciary stating: “This is with respect to the contents of the affidavits, whether the affidavits are correct or not.” The Court also directed the top agencies to co-operate and investigate this matter. Simultaneously, her complaint was found unsubstantiated by a three-member committee headed by Justice S.A. Bobde and comprising Justice Indu Malhotra and Justice Indira Banerjee. The report has not seen the light of day. The complainant was reinstated just after Chief Justice Bobde took over. This vindicated her on the one hand and proves that every action taken by the Court and the police were unconstitutional. Did these events influence the exercise of the powers by these three masters of the roster? When Chief Justice Bobde took over, I had written that his appointment gave “fresh hope to all stakeholders in the administration of justice”, but that his acceptance of the Presidential Proclamation from P.K. Mishra, Principal Secretary to the Prime Minister, raised serious concerns about the times to come.
Functioning of the court
Since the lockdown, the Supreme Court has been functioning in a truncated manner. Despite repeated requests from the Bar, virtual hearings have not improved. While the High Courts have been using better systems, the Supreme Court persists on using a system which does not allow all the judges to sit every day. As a result, generally seven-eight Benches sit every day as against 13-15 which can be constituted by the master of the roster. The Court, which in March stated that the migrant exodus was triggered by panic created by fake news , has been repeatedly adjourning the matter on the role of the media in publishing/ broadcasting false and vicious reports on the Nizamuddin Markaz vilifying a section of Indians. Is the Court not the protector of minorities? The working of the Court is far from satisfactory although the Court claims that sufficient number of matters are being heard. The Bar and litigants feel otherwise. The constitution of Benches and allocation of matters even under the present dispensation continues to be subjective. Senior judges are not assigned PIL matters and almost all matters raising important issues in respect of acts of commissions and omissions by the executive have been allocated to Benches constituted by the Chief Justice.
The Court needs to re-address its role assigned under the Constitution. The Supreme Court must reassert emphatically that it is truly the sentinel on the qui vive as regards the fundamental rights of all citizens.
Dushyant Dave is a Senior Advocate in the Supreme Court of India and is President of the Supreme Court Bar Association. Views are personal