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.