Former CJI Lodha Says Independence of Judiciary is Under Challenge

"Yes, the Chief Justice of India is, master of the roster, but does it give him the authority to do what he likes? Can he exercise this authority arbitrarily?"

New Delhi: Making a connection between the independence of the judiciary – which he said was under challenge – and  the ongoing controversy over the role of Chief Justice of India Dipak Misra as “master of the roster”, former CJI R.M. Lodha on Tuesday described the current situation in the Supreme Court as “disastrous”.

Justice Lodha had already spoken out against the Modi government’s decision to spurn the Supreme Court collegium’s recommendation of Justice K.M. Joseph for elevation to the apex court but his latest remarks saw him zero in on the responsibility of Chief Justice Misra to show “statesmanlike qualities” and restore “collegiality” within the court so that the independence of the judiciary could be defended.

Justice Lodha, who headed the Supreme Court for five months from April to September 2014, was speaking here at the launch of Arun Shourie’s latest book on the judiciary, Bail for Anita.

He said that the Supreme Court and the current CJI have twice re-emphasised the fact that the chief justice is the master of the roster. “Yes he is,” said Justice Lodha, “but does it give him the authority to do what he likes? Can he exercise this authority arbitrarily?”

He said “there was no parallel with the United States Supreme Court because the nine judges sit en banc” but the opinion assignment function of the US chief justice was similar to the role the Indian chief justice plays in assigning cases to specific benches.

Justice Lodha referred to the legendary US Supreme Court judge Felix Frankfurter, who once noted that “perhaps no aspect of the ‘administrative side’ that is vested in the chief justice is more important than the duty to assign the writing of the court’s opinion… [I]f the duty is wisely discharged [it is] perhaps the most delicate judgment demanded of the chief justice.”

He cited a recent Harvard Law Review study of the assignment of opinions under the present US chief justice, John G. Roberts:

“All Supreme Court cases are, of course, not equal. Some are a lot more interesting than others. Some are far more important than others. Some, including those in which the vote is closely divided, require opinions that are much more difficult to write than others. And, some are stultifyingly dull. Nor, for those same reasons, are the Justices benignly neutral about a Chief’s opinion assignments. Justices naturally desire the opportunity to write the opinion of the Court in the “big,” more high-profile, salient cases.”

The view in the US, said Justice Lodha, was that these cases had to be fairly distributed so that each judge got a “nice mix”. In the same way, he said, the allocation of cases in the Indian Supreme Court also has to be fair. “Senior judges must also get their due”, he said, in an implicit criticism of the fact that none of the seniormost judges have found place in any of the constitution bench cases set up by Chief Justice Misra.

Collegiality is a sine qua non for the court, said Justice Lodha, because it “allows common ground for betterment of justice”. By contrast, the “phase we are seeing in the Supreme Court today is disastrous”, he added.

The independence of the judiciary is non-negotiable, he said, “and it is for the chief justice, who is the leader of the court, to take this forward, show statesmanlike qualities, and take all brother and sister judges along”.

“When judges do not ensure the independence of the judiciary, it is very bad for democracy. For a democracy to thrive, independence of the judiciary is a must and that must come from the top, from the Supreme Court.”

Justice Lodha said that if what is currently happening in the Supreme Court is taken as a precedent in the high courts, “the day is not far when the judicial system in the country will be chaotic”.

Ordinary citizens want judicial integrity of the highest order, he said, “because they fight with the might of the state and when the enter the portals of the Supreme Court or high court they must feel assured that they wil get justice – justice without fear or favour”.

Others who spoke at the book launch were the eminent jurist Fali Nariman, who spoke of the backlog of cases and the inadequate number of judges, as well as Justice A.P. Shah, who dwelt at length on a number of current judicial controversies including the Judge Loya case, the medical college case and the Supreme Court’s failure to deal with the issues raised by former Arunachal chief minister Kalikho Pul’s suicide note.

‘Most institutions are destroyed from within, by termites’

Summing up the problem, Arun Shourie said what India was witnessing was a “well-planned assault on the judiciary” which was coming not from an individual but an ideology – “a totalitarian mindset” that seeks complete domination over all institutions.

Shourie, who is a sharp critic of Prime Minister Narendra Modi, said that the assault on judicial independence required vigilance. “Do not fall for the delusion of reprieve, that just because you thwarted them on one issue things will be fine. You have to check them each time. If you do not stop them at every juncture they will carry on.
Most institutions are destroyed by termites within rather than by a lethal blow from outside.”

Asserting that the present CJI’s role “is of such convenience to the centre that it cannot but be of their design”, Shourie said if Chief Justice Misra has to “say repeatedly that he is the master of the roster, this already means that he has lost the moral authority”.

Shourie said the “Gandhian response” to the government’s refusal to accept the nomination of Justice K.M. Joseph would have been for the Supreme Court collegium to say it would then also not move on the one name the government had cleared, that of Indu Malhotra. He said Indu Malhotra – who was sworn in as a judge of the Supreme Court last week – should have refused to take her oath unless the government showed it respected the independence of the judiciary by clearing Justice Jospeh’s nomination too.