A self-made crisis in the Supreme Court

The beauty of true democracy lies in giving space to the voice of dissent, the suppression of differing opinions would stifle the values forever.  The aforementioned rule has to be absolutely followed in ensuring the preservation of democratic spirit. But, when we think of rules, there comes a gentle reminder that the rules are always not absolute and of course, it comes with certain limitations. The freedom of speech and expression guaranteed by our Constitution ensures the right to free speech, which is the life-breath of our democracy, at the same time, it is not an absolute right. The moment the said right becomes absolute, it would cause anarchy, as there are umpteen tongues and pens waiting to tear into the personal spaces of other citizens. It is in this context, the self-regulatory mechanisms attain utmost importance, the checks and balances play a vital role in ensuring the ‘institutional integrity’.

The whole nation has been eagerly watching the developments which have given rise to an unprecedented crisis in the apex court after the press conference held by the four senior-most judges of the Supreme Court. The press meet has resulted in multifarious interpretations of the crisis, the legal fraternity, no doubt is still stunned and searching the extent of institutional damage caused by the press meet. The present event has been wrongly likened by certain commentators to two previous crisis faced by the apex court in the decade of 70’s. The first crisis was precipitated when the senior-most judges of the apex court were forced to quit when they were superseded, in the appointment of the Chief Justice of India (CJI).

Unlike the present crisis, stemming from the administrative issues, the crisis in apex court which resulted in the resignation of three judges namely – Justices J M Shelat, K S Hegde and A N Grover on the elevation of Justice A N Ray was in protest against the attempts to bring in a committed judiciary by the then ruling dispensation. The three judges invited the wrath of the regime headed by then Prime Minister Indira Gandhi, as they drew a ‘Lakshman rekha’ for the parliament, through the epoch Kesavanda Bharati case. The superseding of the three senior-most judges after the retirement of CJI S M Sikri and the elevation of Justice A N Ray as the new CJI, gave way to widespread protest, as it was seen as an intentional attempt to erode the independence and dignity of the apex court.

The turbulent times did not end there, the decade had much more in the offing, and the whole nation came under the dark looming clouds of Emergency. Torture and suppression rained on those who defied the Emergency and who fought for the restoration of the freedom. The days were grim, rays of freedom evaded, a darkness of suppression prevailed and reality was put under the carpet as the censors appointed by the ruling dispensation painted ‘all is well’ even when the fundamental rights were being crushed.

Once more, history repeated, when the political executive’s wrath fell on Justice H R Khanna who was superseded by Justice M H Beg as CJI. Justice H R Khanna in ADM Jabalpur vs Shivkant Shukla decided by the Supreme Court’s five-judge constitution bench made the famous disenting note, that the Constitution did not intend to permit right to life and liberty to be subject to the executive decree, which immortalized him, whereas, the other  four  judges, except Justice H R Khanna, agreed with the governmental view that even fundamental rights like the ‘right to life’ stood abrogated during the period of National Emergency and the legality of detention orders though malafide cannot be questioned in a court of law. Justice H R Khanna who resigned in protest on being superseded, later on, became the Law Minister of India.

The present crisis in the Supreme Court stands on a different pedestal as the current crisis has not stemmed up from political interference nor the ruling dispensation has hampered in the crisis. The principled stand of the Executive, as well as the rest of the judges, deserves appreciation as the counter reactions would have added the pace and depth of damage to the ‘great institution’. The crisis has been left to the apex court itself to solve. The issue, of course takes the attention to the ‘Restatement Of Values of Judicial Life’ considered in the Full Court meeting of the Supreme Court of India on May 7, 1997, and adopted for due observance to serve as a guide to be observed by judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice. The adopted values of the apex court itself is a self-regulatory mechanism. If the same would have been followed, the current unending debate could have been avoided, at the same time, the grievances of all sorts could have been agitated in the inner inherent mechanism of the apex court. The quoting of few values is worthwhile, as it shows the farsightedness of the judges who occupied the great institution.

RESTATEMENT OF VALUES OF JUDICIAL LIFE

(1) Justice must not merely be done but it must also be seen as done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of the perception, has to be avoided.

(4) A judge shall not permit any member of his immediate family to, such as spouse, son, or daughter, son-in-law, or daughter-in-law, or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a case to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the judge actually resides or other facilities for professional work.

6) A judge should practise a degree of aloofness consistent with the dignity of his office.

(8) A judge shall not enter into a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A judge is expected to let his judgement speak for themselves. He shall not give an interview to the media.

(16) Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which the office is held.

The issues raised by the judges ought to have been addressed within the inner mechanisms rather than bringing the same to the public domain, the media byte, given even after the press meet, by a judge sets a wrong trend. The vested interests of those who have lost their battles, in the apex court are out to malign the institution, the steps hereafter should be careful and cautious, as the integrity of the ‘great pillar of democracy’ is at stake, more than a billion is watching eagerly.

Author is an advocate in the Supreme Court

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