“The foundation of a democracy, the source of its perennial vitality, the condition for its growth, and the hope for its welfare—all lie in that great institution, an independent judiciary.”
—Nani Palkhivala
Societies in ancient India were governed by ‘moral law’: it was not the law as it is perceived today, since it did not owe its origin to the command of any sovereign, nor was there any habit of obedience to a determinate person as it was believed to have been ordained by a divine author. Thus the ancient rules and regulations were more or less like what the Romans called jus receptum. The earliest known form of law was the Smritis which were compiled by the rishis who did not exercise any power nor did owe any position to any sovereign but claimed themselves as the exponents of divine precepts of law and compilers of the tradition handed down by generations. The foremost rank of authority was the Manusmriti (Sanskrit: “Laws of Manu” or “The Remembered Tradition of Manu”) compiled in between 200 BC and 1000 AD. It was also called the Manava-dharma-shastra (“The Dharma Text of Manu”), traditionally the most authoritative of the books of the Hindu code (Dharma-shastra) in India.
Before the dawn of the British Empire in India, the administration and justice were in the hands of the courts established by the emperors, with ruling chiefs owing real and pretended allegiance to them. A notable feature of the British-Indian judicial system before 1852 was the existence of two parallel systems of courts—the Supreme Courts in the Presidency Towns, and the ‘adalats’ in the areas known as ‘mofussil’, outside the Presidency Towns. After the suppression of the First War of Indian Independence (1857), which finally put an end to Mughal Rule in India, the Parliament in Great Britain passed the Government of India Act, 1858, which authorised the British Crown to take over the administration of Indian territories from the East India Company. A unified legal system with a tiered pattern of civil and criminal courts was established, which remains unchanged to this day. High Courts for each Presidency, and later for each Province, were established under the Indian High Courts Act, 1861. They were enjoined to administer the law according to justice, equity and good conscience. The subordinate judiciary was established, and civil courts were organised in a regular hierarchy in each district as per the civil and criminal jurisdiction. Over the High Courts was the Privy Council in England, hearing appeals directly from Indian courts until 1937. The Federal Court of India, the apex court in India, was established in 1937 under the provisions of the Government of India Act 1935, with original, appellate and advisory jurisdiction. The Federal Court had exclusive original jurisdiction in any dispute between the Central Government and the Provinces. Initially, it was empowered to hear appeals from the High Courts of the Provinces. There was a right of appeal to the Judicial Committee of the Privy Council in London from the Federal Court of India. Under the Constitution of India, 1950, appeals were no longer taken to the Privy Council, but to a new constitutionally established court—the Supreme Court of India. The British-India legal system was left untouched by the Constitution of India, 1950. Article 372 of the Constitution provided that “all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered, repealed or amended by a competent legislature or other competent authority.” The ‘laws in force’ included not only statutory laws but also common laws.
In his inaugural address on the declaration of November 26, 1979 as National Law Day to commemorate 30 years of adoption of the Constitution of India by the Constituent Assembly, the then Supreme Court Bar Association President L.M. Singhvi said that the purpose of such a designation was to emphasise the role and importance of law in the life of our Republic. He also said that the aim behind this move was to review the state of law and administration of justice, to suggest ways and means of improving our laws and legal and judicial system, to establish better and more meaningful equations between the Bench and the Bar, to strengthen the principle of the independence of judiciary…and to maintain, reinforce and augment public confidence in our legal and judicial system. The current events in the Supreme Court have not only sounded a national alarm, but have also threatened the confidence that the public might repose in the judiciary. The court’s collective actions, in undermining every notion of good ethical conduct, has struck a potentially irredeemable blow at the principles highlighted by Singhvi in his speech, each of which goes to the root of the constitutional morality that Dr. B.R. Ambedkar held so dear. An unprecedented move was initiated from four senior-most judges of the Supreme Court when they held a press conference and raised a banner of revolt against the Chief Justice of India (CJI) on January 12, 2018. This incident has sent tremors across the country in general and the legal circles in particular. Despite the divided opinion, no one can deny that the action of four judges has caused serious damage to the credibility of the institution. It has undoubtedly created a bad precedent of approaching the media for redressal of the internal grievances of the judiciary. The constant refrain of resolving the problems internally, at first glance, is curious, as it appears to be an attempt to close the stable doors after the horse has bolted. The immediate trigger for the press conference was the apparent arbitrariness of the Chief Justice of India in allocating the benches for disposal of cases. The opaque internal structure of the judiciary founded on a combination of unquestioning trust in the office of the CJI along with an instinctive distaste for any interference by the Parliament or government in the judicial functioning. Due to the sacrosanctity of both the premises, anything to the contrary appears blasphemous. A politicised judiciary might well suffer from a lack of public confidence and provide an opportunity for politicians to fish in troubled waters. Equally critically, this fear of politicisation is misdirected, being based on a naive view that overt parliamentary law is the sole method of interference with the judiciary. It fails to countenance the more nefarious methods of political interference in the judiciary. As Bentham said, a view the Supreme Court itself has endorsed in Mirajkar, “in the darkness of secrecy, sinister interest and evil in every shape, have full swing”. It is this darkness that the press conference has shone a light on.
The issue that shook the pillars of the Supreme Court in 2017 was the conviction of a sitting High Court Judge Justice C.S. Karnan by initiating contempt of court proceedings. It was criticised by many that the bench’s unstated objective was to send Justice Karnan to jail while he continued to be in office as a judge in order to demonstrate that it applied its contempt powers irrespective of whether a person happened to be a judge or a non-judge. The Supreme Court may well have invoked its contempt powers against Justice Karnan in order to uphold the institutional honour, majesty and reputation. But unfortunately, it allowed the very virtues to be eroded by its indifference to well-established principles of procedural fairness and natural justice.
There has to be a reform of The Supreme Court Act to be passed by the Parliament after an open public discussion involving all stakeholders—civil society, the judiciary, the Bar and members of all shades of public opinion. As a first step to such reform, it is important to clarify that the Constitution envisages the powers and jurisdiction of the Supreme Court to be the possible subject matter of a parliamentary law. This is evident from Entry 77 of List I of the Seventh Schedule which makes the aforementioned a legitimate subject of law making. Passage of such a law is critical to rectify the discourse of any parliamentary law relating to the judicial anathema. The main focus of the Act must be restructuring of the Apex Court. It is vital that a court with 31 judges, to function as an apex court, must develop some degree of institutional coherence and such coherence is possible only when the court sits in benches of two judges each. This structure allows the CJI to be the master of the roster. An antidote to both the problems is the restructuring of the Supreme Court from the root. The CJI cannot absolve himself of his responsibility for the present state of affairs. Being the master of the roster does not mean arbitrary exercise of his power. He is to exercise his power without giving a scope for any justifiable criticism and not expected to brush aside any suggestions in this regard from his colleagues. Assignment of judges for the hearing of the case has always earned the odium of many in the history but such instances were few and far between and they were never discussed in public. A proposed law is critical to start a frank public conversation around what the judiciary needs to restore public confidence. Such a public conversation is necessary to underline that the judiciary is part of a republican constitutional framework, not the preserve of lawyers and judges alone. An internal resolution will be its antithesis, which might defuse the present crisis, but will exacerbate the deeper wound.