Lawyer-politicians ran with hares and hunted with the hounds after Jan 12 presser

The unprecedented press conference by four seniormost Supreme Court judges on January 12 shattered the calm exterior of the judiciary. Most of the four wanted to “discharge their debt to the nation” by informing the public about the “anomalous” administrative decisions of the Chief Justice of India.

They were naive to assume that their going public would force a course correction in the CJI’s administrative decisions, which included assigning of cases to benches headed by “junior” judges.

After watching the unfolding events from close quarters, one is sure they would not have imagined that a simple “debt discharging” press conference would inflict a deep wound on judicial independence, invite political interference and, worse, allow lawyer-politicians to adopt a “run with the hare and hunt with the hounds” strategy to attempt to pressurise the CJI.

The four judges candidly said that allocation of petitions seeking a probe into judicial officer B H Loya’s death to a “junior SC judge” was the tripping point. In reality, it was the personal perception about handling of the medical scam case, coupled with a judge’s unflagging ambition to achieve the unattainable, which fuelled the rebellion.

Lawyer-politicians seized the opportunity and added two more cases — one, sudden activation of a dormant Ayodhya case on the request of BJP leader Subramanian Swamy and second, reopening of 1984 anti-Sikh riot cases by appointment of a committee headed by former Delhi HC judge S N Dhingra — to target the CJI.

On the political front, these lawyer-politicians kept the CJI on tenterhooks by strongly lobbying with their party bosses to initiate a motion for the CJI’s removal. In court, they seamlessly slipped into black robes and smilingly argued before the bench seeking relief in politically sensitive cases. The SC had not experienced the machinations of such lawyer-politicians when it said in C Ravichandran Iyer case [1995 (5) SCC 457], “The judges of higher echelons should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life.

They should be men of fighting faith with tough fibre not susceptible to any pressure — economic, political or any sort.” It is easy to say that judges must be of tougher material than lawyers, the community from which they are mostly drawn. But a threat to bring removal motion against a judge as a sinister design to make him cower in fear of ignominy has its effect on a man who also lives within society’s bounds.

While lawyer-politicians attempted to reap advantage in important cases having political ramifications by attempting to subdue the CJI, the executive too found the fluid situation a fertile ground to undermine judicial independence. Though mercifully it did not interfere in the internal impasse, it definitely took advantage of lack of unity within the collegium to stall appointment of SC and HC judges.

So, what did the press conference achieve? It is doubtful whether the grievance about allocation of cases to “junior” judges has been addressed. But surely, it opened the field for political and executive interference in judiciary? In 1995, two bar associations of Bombay (now Mumbai) passed resolutions demanding resignation of then Chief Justice of Bombay HC A M Bhattacharjee, alleging that an astronomical amount was paid by a foreign publisher to market two books authored by him abroad and that this could influence the CJ’s judicial decisions given the lawyers involved in striking the deal.

This issue was brought before the SC by one Ravichandran Iyer. The SC had said that except Parliament dealing with a removal motion, “no other forum or fora or platform is available for discussion of the conduct of a judge in the discharge of his duties as a judge of the SC or HC, much less a bar council or a group of practising advocates.

They are prohibited to discuss the conduct of a judge in the discharge of his duties or pass any resolution in that behalf ”. Referring to the “extraordinary complexity of modern litigation”, the SC had in the same judgment said, “The independence of judiciary is not limited only to independence from executive pressure or influence, it is a wider concept which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz, fearlessness of other power centres, economic and political, freedom from prejudices acquired and nourished by the class to which the judge belongs.” The SC also talked about judicial individualism.

It said every judge in constitutional courts enjoyed individual freedom and peers could not exert pressure to make him act in a charted manner. To buttress this argument, the SC had quoted the dissenting opinion of two US Supreme Court judges in the 1970 case ‘Stephen S Chandler vs Judicial Council of the Tenth Circuit of the US’.

The dissenting judgment said, “Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him... Some judges may be displeasing to those who walk in more measured, conservative steps but those idiosyncrasies can be of no possible constitutional concern to other federal judges.”

It is time SC and HC judges took stock of the fallout of the presser and put heads together to devise ways and means to ward off political, executive and economic powers ever so eager to exert influence on the judiciary, undermining the cardinality of judicial independence.