Judicial Balancing Act from Within

The reported spat between Chief Justice P. Sadasivam and the earlier incumbent to the office Justice Altamas Kabir does not augur well for the judicial system. More so, with the Executive breathing on its neck. It is not in dispute that the Chief Justice of the Supreme Court or for that matter of a State High Court is not the master of the court. He is the first among equals and also the ‘master of the rolls’. As an administrative unit he heads the institution. Article 124 of the Constitution of India prescribes that ‘there shall be a Supreme Court of India’ and goes on to prescribe its strength. The appointing authority is the President and in the case of all the judges other than the Chief Justice, the appointment by the President is on consultation with the Chief Justice. In so far as the High Courts are concerned, Articles 214 and 216 provide for it and there is no debate that the Chief Justice heads the court but is not the close fisted master of his brother and sister judges.
There has been an unwritten story of clash between the functioning Chief Justice and the Chief Justice in waiting namely the senior most of the other judges in so far as the Supreme Court is concerned. On the judicial side, they do not really clash as they head different benches and deal with different matters. This time however, the new Chief Justice was hearing a matter that was earlier heard by the outgoing incumbent and therefore the comment.
In so far as the State High Court is concerned, it seems a visible practice though not recorded with any degree of accuracy that the ‘outsider Chief Justice’ often lends his ears to a particular set of judges or to a particular judge. This often is again not the senior most judge. In the present case it was refreshing and encouraging to see Chief Justice Kalyan Jyoti Sengupta functioning on the judicial side in perfect tandem alongside the senior most judge, Justice NV Ramana who had just then completed a stint as the acting Chief Justice.
Voices of discord in a democratic institution is healthy but if it gets personal then there is a danger of the institution losing credibility and respectability. In Andhra Pradesh, it is not judges do not disagree and all judges think alike. However most often than not they maintain the required degree of discipline and ensure that no comment of theirs is remotely construed as disagreement and surely not disrespect. This is surely a good sign and the strength of the functioning of our system.
This reiterates the point that judges likes Ceaser’s wife should be above suspicion and debate. The task of carrying them as a team is the task of the Chief Justice. To being with he is an outsider and starts with certain disadvantages. He needs to overcome them as the captain of the team. Do the outsider Chief Justices care? Are they fine tuned to the intricacies of the Bar and the Bench they inherit in the October of their career? Do they see the set as the launching pad for another posting? How willing are they as repositories of high learning to lend a ear to the active advisors or the well wishers of the system? Where do they go for advice outside the cocooned brotherhood? Answers to these and many similar questions would be seen by management scholars as vital for the health of any institution but in so far as the judiciary is concerned these questions are not answered, nay they are even not raised leave alone being addressed. Some time when the ‘minds and the conscience’ meet outside the patterned pigeon wholes of the system, they must begin to talk about them and move consciously towards restructuring a more transparent and accountable alternative. The more the windows the greater the fresh air. This realisation would not bring down the credibility of the institution. It would enhance it.
Whimsical diktats is anathema to the constitutional form of governance. Judges are trained to hear debate on a daily basis. I shall resist being waylaid on the contextual debate if they do it in sufficient measure. They would help the institution a lot more if they permit a debate on their functioning and style – both individual and collective. For, after all if their verdicts are subject to correction and as human beings they are fallible why this presumption that they are beyond debate? The need for better inter action between the Bar and the Bench and for a concerted effort for both to have a say in the functional logistics cannot be over stated.

L. Ravichander.