The fact that judges make law has been acknowledged in the constitutional history of various jurisdictions. However, following the English common law tradition, the appellate judges humour themselves with the fiction that they merely interpret the law laid down by the legislature. Such Blackstonian fantasies help to obfuscate the question of power vested in adjudicatory practices and the issue of the accountability of power.
The recent controversy triggered by four of our senior-most judges coming out in open brings to surface the often ignored aspect of administrative or executive powers of the appellate judiciary. In India, the Supreme Court does not sit as a full bench to decide cases. The court is divided into various panels of judges who sit as ‘division benches’. In such a scenario, the Chief Justice possesses tremendous executive power in constituting such benches and deciding on case allocations. This untrammelled executive power which rests in the Chief Justice – the reason he is known as the master of the roster – is neither subject to any review or known restrictions.
We are readily reminded of existing judicial ‘conventions’ which functionally limit such surplus enjoyment of individual Chief Justices. But it is never clearly spelled out to the citizens what the principles, norms or guidelines guiding or governing such convention/s are. The present controversy alerts us to the danger of uncritically keeping our faith in the conventional wisdom of the country’s most powerful institution. It is important to remember the fact that this alleged abuse of power is not a one off moment that has summoned the highest court. If institutional memory is our guide, then one must recall that in May 2007, Mid Day, an English daily newspaper, published an investigative account of alleged nepotism of the then Chief Justice Y.K. Sabharwal for his 2006 orders of sealing commercial establishments in Delhi on account of illegal construction. The substance of the journalistic allegation against the then Chief Justice was that the orders of destruction only fuelled the emancipation of his own family as there was a direct link between his sons amassing profits and the orders passed by the learned Chief Justice. One allegation that arose, amongst many others, was of the exercise of executive power. The issue was that given the obvious conflict of interest in sealing orders, Chief Justice Sabharwal, the master of the roster, should have recused himself from deciding the case instead of taking it up.
The controversy was exacerbated when the Delhi high court, in a suo motu order, summoned the journalists and held them guilty for contempt of court for “lowering the image” of the judiciary in the eyes of the common (wo)man. A decade later, on January 2, 2017, the Supreme Court, in Vitusha Oberoi v. Court in its own motion, set aside the high court’s decision as erroneous and acquitted the appellants. It took recourse to the rather technical grounds that the ‘power to punish for contempt…does not extend to punishing for the contempt of a superior court’. But the issues from the ‘institutional unconscious’ which surfaced from the original controversy remained buried as the public secrets of the legal profession.
The recent controversy is symptomatic of the structural failure of the legal system to learn from institutional memory. From the point of view of the people of India, such irregularities would never surface without the courage of investigative journalism or an unprecedented attempt of the senior-most Supreme Court judges to converse directly with the people of India. As the dust of the storm settles, it would be scary to fail again to acknowledge the evil within. Tempting though it has been, this is an opportune moment to avoid reducing this event to tirades against individual judges on either side of the controversy. One sincerely hopes that the concern is addressed as a systemic and structural issue of accountability and not the ‘affairs’ of individual judges.
A serious introspection on the events may turn this into an opportunity to overhaul various other apparently arbitrary markers present in the judicial exercise of administrative powers. The fact of many review petitions being dismissed with no-speaking-orders trigger the feminist memory of women’s failed attempt to file the review of the infamous Mathura rape case. Curative petitions also meet a similar fate. Way back in 1987, Upendra Baxi had described the power not to admit a case without any reasons as ‘decision not to proceed to a decision!’ He listed various detrimental and untrammelled ‘not patently legislative’ administrative powers of appellate courts lacking accountability. These include the powers of admission, powers of scheduling cases for hearing, powers to form benches, powers of granting ‘stay’ pendente lite and powers of scheduling reasoned judgments. The responsibility for transparency in these matters is incumbent on the judiciary itself, given the legitimate expectation of institutional efficacy from the apex court. It is a fond hope that the Supreme Court will internalise the spirit of constitutionalism whereby arbitrary exercise of power is an ‘anathema to the rule of law’, a principle which it painstakingly developed and nurtured in the late 1970s and 80s.
Accountability by way of self-regulation and transparency in the executive exercise of powers would go a long way to recuperate the institution’s legitimacy. Hitherto, the fiction that masked the fact of judicial law-making sidestepped the questions of judicial transparency and answerability in executive matters. The recent judicial controversy has demonstrated that it is time now to turn the gaze inward and improve oneself before thinking of improving the world.