Should the four SC judges have dissented publicly 

Should the four SC judges have dissented publicly 

 Context

An unprecedented event took place on January 12 when the four senior-most judges of the Supreme Court, after the Chief Justice of India (CJI), held a press conference, issued a statement, and also answered questions from the media. Justice J. Chelameswar, at whose residence the press conference was held, said that the judges were “left with no choice” other than to communicate to the nation the many “less than desirable things” that have happened “in the last few months”.

 YES

Last resort

• They had no option but to address the nation and inform its citizens about the lack of impartiality, which is the bedrock of administration of justice.
• The four judges were absolutely right in informing the public of the dangers that lie ahead

 Protecting the Democracy

• Democracy is enshrined in the Constitution. It is their duty as Supreme Court judges to protect the Constitution
• If there is no democracy, there is no Constitution and no constitutional democracy

Their attempts were unsuccessful

• It is not as if the four judges did not try for months to convince the CJI that he must not resort to selectivity in the assignment of cases, but it bore no results
• Even on the day of the press conference, they met the CJI (in regard to the listing of cases) but could not convince him

Analysis

Unless this lack of impartiality in the administration of justice is enquired into, and unless rules are framed on a rational basis and a system is devised for an impartial allocation of cases, the damaged faith of the people of India in the impartiality of the Supreme Court will not be fully restored.

Role of the Attorney General failed

• It was expected of the Attorney General of India as a constitutional authority to squarely confront the serious issues raised by the four judges and ensure that the faith of the people in the independence and impartiality of judges is restored
• The Attorney General has unfortunately failed to deal with the vital issues raised

 Opportunity for the Attorney General

• This is an opportunity for the Attorney General to save the Constitution. He should not act as an agent of the government, but as a constitutional authority
• Equally, it is his constitutional duty to squarely attend to the vital issues raised by the four judges in discussion with the CJI and all other judges of the Supreme Court to find a solution that will restore the dignity of the Supreme Court.

NO

If the judiciary is divided, it will have a direct effect on the very survival of democracy

A strong and united judiciary is the sine qua non (The essential, crucial, or indispensable ingredient without which something would be impossible: From Latin, meaning “without which nothing) for a strong and vibrant democracy

Have internal discussions

When any judge has a difference of opinion on any professional matter with his brother colleagues, the best way to iron out these differences is to have an amicable discussion on the same

Hope of the common man is diminished

• The stability of a nation depends on two factors: the common man’s absolute faith in the currency of the nation and in the judiciary
• In a democracy, the judiciary is one of the most important pillars and it is the last ray of hope for the common man
• If his faith in the judiciary is hampered in any manner, the result is a huge loss to the country and to the judiciary.

Contempt of Courts Act: truth is not a valid defence

• Judicial discipline also requires maintaining a certain decorum because under the Contempt of Courts Act, truth is not a valid defence
• The legislature has made this rule to ensure that the common man’s interests are protected, even if there is a ring of truth in the allegations

President’s help

• Either the judges should have called for a full-court meeting where they could have discussed the issue and found a solution or they could have sought the intervention of the President to resolve the issues
• Appointments of judges are issued in his name
• Informing and seeking the intervention of the President would also have ensured that there was no interference in the judiciary

Should not set a precedent

• What I also fear is that the subordinate judiciary might take this as a cue to air their differences. After all, they too can do the same
• The High Courts, the lower courts and various judges could all come out and publicly speak against their chief justices

Corrective measures need to be taken by the judiciary itself in order to set things in order.

IT’S COMPLICATED

The full facts are not out in the public domain, and may never be

Sitting judges seldom, if ever, speak to the media. The process of adjudication demands that the judge concentrate solely on the record before him

Judiciary should stay away from media

However, it is more than judicial reason that keeps judges from resorting to the media. Judges are very careful to stay out of political partisanship of any kind whatsoever

In the US

• Justice Ruth Bader Ginsburg of the U.S. Supreme Court scoffed at the idea of a Trump presidency
• She later had to withdraw her words and agree that speaking to the press on politics was not a good idea

Restatement of Values of Judicial Life

On May 7, 1997, the Supreme Court of India adopted a charter called the Restatement of Values of Judicial Life

What is it?

• This was to serve as a guide to be observed by judges and was considered essential for an independent, strong and respected judiciary
• The charter advises judges to be “aloof”, and “not enter public debate” or “give interviews to the media”

Bad examples

• It must be acknowledged that judges are the best arbiters (a person whose views or actions have influence in a particular sphere) of when rules require to be ignored, if not broken
• Justice Dalveer Bhandari of the International Court of Justice gave media interviews on the Kulbhushan Jadhav case even as the matter is still pending

Festering problems

• Their grievance was not simply about them being left out or being given non-substantial work
• Their complaint was of work being selectively allocated to achieve a result which was to the government’s liking
• The judges placed on record a letter written by all four of them over two months prior to the press conference
• Considering that Chief Justice Dipak Misra assumed office on August 28, 2017, the fact that four senior judges felt compelled to caution him three months into his tenure is itself indicative of the fact that the collegial ways of administering the highest court had broken down.

Public debate on conduct

The press conference has had the effect of bringing into public debate the conduct of various judges, a course of action which the Constitution-makers wanted to avoid

 Article 121

Article 121 prohibits the legislature from discussing the official conduct of any judge of a constitutional court, except while debating an impeachment motion

No clear asnwers

For the moment, it is quite clear that there are no clear answers to the question of whether the four judges ought to have resorted to a press conference. The full facts are not out in the public domain, and may never be. The judges would be justified if their perception was of a clear and present danger to the Republic and to the independence of the judiciary.