There are many who believe that the judiciary in India is under siege and subject to constant bombardment to breach its remaining ramparts. Others think that it is the judicial overreach that holds the greater threat to Indian democracy. There is no dearth of those with little knowledge of history or understanding of the Constitution who proclaim that the doctrine of separation of powers is a ‘Western conspiracy’ to subvert our home-grown democracy and civilisational values. It is becoming increasingly difficult to deodorise the debate.
Recently, the Chief Justice of India, DY Chandrachud, was constrained to sternly caution the President of the Supreme Court Bar Association (SCBA), Vikas Singh, after a heated exchange that exposed the distressing state of strained relationship between the bar and the bench at the apex court. There always have been pompous judges with inflated egos confronting lawyers no less imbued with these traits on the other side. The Supreme Court, however, had so far escaped such unsavoury incidents in
its long history.
The present CJI wears his legal scholarship lightly and is not known to lose his cool under duress. Exceptionally articulate, he is quite capable of squashing bludgeon-brandishing critics with his rapier thrusts. Something must have happened to make him snap at the senior advocate concerned not to raise his voice trying to brow-beat the bench by threatening to escalate the matter. When the illustrious member of the bar refused to yield, the CJI asked him to leave the court.
The incident left those present stunned and some senior members of the bench—no less distinguished than President of the SCBA— hastened to apologise to the CJI. The fallout of the spat was that the CJI did not attend the Holi Milan and Kavi Sammelan organised on this occasion by the SCBA. Clearly, the CJI isn’t inclined to accept the logic ‘bura na mano Holi hai’. Lest the writer of these lines is considered partisan, it must be made clear that distinction should be made between a constitutional authority/ institution and an ordinary individual whose title is only indicative of the ‘elected position’ in the professional’s association—in no way comparable to elected members of any legislature. Nor can such a person claim to be the executive that has separate powers or a constitutional role.
One needs to remind oneself that honorific designations like ‘senior advocate’ do not bestow special authority or status automatically. It can’t be denied that the CJI is the ultimate authority pronouncing a judgment or laying down the law of the land. He is also the ‘master of the rolls’ who forms benches and assigns cases to them. He is a lot more than ‘the first among equals’. With all due respect to the President of the SCBA, he can’t be viewed as an equal of the CJI.
One expects that the members of the bar remain courteous, if not deferential, in tone while addressing the members of the bench. No one expects them to be servile, but not abiding by the instructions to lower their voice, stop bullying or refusing to immediately leave the court when asked to do so verges on contempt. If any bench allows this to pass, irreparable damage to the institution is inevitable. If the members of the bench feel aggrieved, they may boycott the judge’s court. Members of his association may pass resolutions supporting him and criticising the CJI, but this would only add insult to injury. Members of the bar in this colonial legacy are at a certain disadvantage. They cannot launch contempt proceedings against the bench or claim breach of privilege and proceed to punish it.
In passing, we may note that while there is only one CJI and less than three dozen judges in the Supreme Court, the number of senior advocates (designated by the bench itself) stood at 488 at the last count. The readers should consider that the SCBA does not even enjoy a statutory status which the Bar Council of India does. Exceptionally successful lawyers are celebrities—rich and powerful, some in their own right, others due to their proximity with politicians of different hues who depend on these legal eagles to save their skin, and sometimes necks. At times they tend to forget that the system is skewed in favour of the bench.
The CJI parting shot— “you can pursue your political agendas outside the court hall”—is worth pondering upon.The judges themselves may not be free from political or ideological bias, but then the public believes, perhaps naively, that they, like the speakers in legislature, once elevated, are free from this toxic baggage. Judges on the bench are humans, but expected to rise above personal prejudices. If ‘Panch’ loses the sheen of ‘Parmeshwar’, the alternative is chaos. For present, both the bar and bench must strive to make the most of an imperfect judicial system that we have inherited.
Pushpesh Pant
Former professor, Jawaharlal Nehru University
pushpeshpant@gmail.com