There is a saying that the house got burnt by its own (house stove). I was reminded of this on the day when the four Supreme Court judges held a press conference and made serious charges against the Chief Justice. To add to the mystery, one of the judges later said, “An issue was raised. Those concerned have listened to it. Such actions would not occur again, and there is no need for outside intervention.” In all this, what is not so acceptable is the suggestion that the pending case in Justice Loya’s death should be heard only by CJI and the top four judges.
Let me give you an instance of how such a situation was handled in a leading high court. It was in 1985 December that a petition was filed in the court asking for a direction to the Rajiv Gandhi government to appoint a commission of inquiry to investigate the 1984 killing of Sikhs. The matter was listed before the first puisne judge. In spite of opposition by Union of India the Bench issued a show cause notice to the Central government for a date in the middle of January, as the high court was closing for winter vacation. A new roster was fixed after the vacation. When it came out, the first puisne judge found that in the roster he was put in a criminal bench, which obviously ruled out him hearing the inquiry commission matter. The judge was surprised at this action of the chief justice. He had the choice of going public or raise the issue with a few members of the Bar. Instead he took leave for one week immediately on the reopening of the high court. The message was conveyed to the chief justice without making a public display. The new Bench dismissed the writ petition, which is another matter. But here the matter has gone to the press, with the four senior-most judges suggesting that keeping quiet was not an option “as cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches…without any rational basis for such assignment.
May I give another instance of a high court, which dealt with the trial of a case involving the murder of Indira Gandhi? Under law, the allocation of the trial court is decided by the district judge or the high court. The first puisne judge of the high ,court heard from the press that the case was marked to one particular additional district and sessions judge who he felt was not up to the mark. On enquiry he was told by the registrar that the chief justice had so ordered. In law, the chief justice could not do so because “high court” means a decision by the majority of all judges. This is done by circulating the suggested decision amongst the judges. The circulation is done by sending it to the junior most judge so that he could give his opinion uninfluenced by any view given by the senior judges. The first puisne judge, being conscious of this frailty told the registrar to bring this to the notice of the chief justice and tell him that he would sign first (against the usual practice) as a kind of assurance that there be unanimity amongst the judges and thus avoid embarrassment if the order was to be challenged. The chief justice understood the delicacy of the matter and agreed to the suggestion, so the order became legal. This was done because the first puisne judge refused to move against the chief justice.
The issues raised by the four judges are central to the independence and institutional integrity of the judiciary and must be addressed immediately and course correction must be ensured by the full court.
People must be wondering whether they are in danger of losing an independent judiciary as guaranteed by the Constitution. I myself am reminded of the searing words from the Bible, strongly spread by Jaya Prakash Narain during the fight against Emergency: “but if the salt has lost its flavor, with which shall it be salted?”
I hope the Supreme Court does not take offence and make it a matter of undue superiority and take the stand that this matter, notwithstanding that it has disturbed the whole Bar of the country, will not be discussed with the Bar because it is its sole privilege. May I in all humility submit that this assumption proceeds on the belief that the judges are immune to human frailties even while making non-judicial decisions (such as appointments and transfers)? This is not accepted even by members of the judiciary itself, vide the expostulation of Justice Frankfurter of the US Supreme Court that “all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint.”
If I sound a bit harsh, I can only invoke the caveat of Justice Holmes of the US Supreme Court, who said, “I trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely…But one may criticise even what one reveres…And I would show less than devotion, if I did not do what in me lies to improve it.”
Rajindar Sachar is a retired judge