When rivalry trumped decorum in the highest court

The author believes that the October 10, 2011, event of Justice Dipak Misra taking oath before Justice J. Chelameswar, which resulted in him going on to become the Chief Justice of India, may have led to the January 12, 2018, press conference.

One can discern a note of despair in the title of Fali Nariman's book, God Save the Hon'ble Supreme Court. According to the distinguished jurist, though the Supreme Court is cast in stone, the men and women who occupy it, transient though their presence may be, through their failings, ego clashes and interpersonal rivalries, affect the public image of this great edifice that must be held in highest esteem by all Indians.

Nariman begins the first chapter of his book with a quote from the opening lines of Charles Dicken's 1859 classic, A Tale of Two Cities to describe the mood of the events in the Supreme Court from January 2017 to the summer vacation of May 2018. “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness... it was the spring of hope, it was the winter of despair...”  

He speaks through Justice R.C. Lahoti's observations in the judgment in Tirupati Balaji Developers Pvt Ltd versus State of Bihar (2004), where Justice Lahoti comments, “When there is little or no judicial collegiality, there is less incentive for judges to exercise self restraint…,” to stress the point that collegiality among the judges of the top court is a condition precedent to strengthening the public confidence in this court. Despite their internal differences they must be able to project the image of a unified and coherent whole. “Acute controversy, causing widespread concern because — and only because — a singular lack of spirit of collegiality has been exhibited amongst the seniormost judges….  It leaves us all wringing our hands in the winter of despair,” the author laments.

Nariman provides a valuable lesson for future chief justices, about the dangers of the lack of the spirit of collegiality in one of the world's most powerful courts.

He succinctly captures the recent happenings in the Supreme Court — both its high and low points. This first chapter is the strength of the book and extends to almost one-third of the entire book comprising 11 chapters. It starts with a brief summary of some of the landmark decisions of this period, including the triple talaq case (Shayara Bano versus Union of India, 2017), the right to privacy case (Justice K.S. Puttaswamy versus Union of India, 2017) and the euthanasia case (Common Cause versus Union of India, 2018). As far as landmark rulings are concerned, it was a glorious period.

But alas, it was also a low period, filled with judicial errors. Nariman is especially critical of Justice J. Chelameswar who, according to him, made a grave error of judgment by ordering the setting up of a bench of five judges in the Prasad Educational Trust case, in which it was alleged by the petitioners that Chief Justice Dipak Misra's name was mentioned. It is only the Chief Justice who is the master of the roster. Justice Chelameswar had clearly overstepped his brief in issuing such directions.

He writes that he was greatly perturbed by Chelameswar's decision in August 2016 to go public over the lack of transparency in the working of the collegium system. “If a judge in the collegium does not like the way the body functions... he/she can quit and then explain why he/she quit. People would then understand him/her better and appreciate his/her stand,” he notes.

The veteran jurist is also critical of Chief Justice Dipak Misra, saying he ought to have replied to the letter addressed to him by the four seniormost judges listing their complaints. Nariman comments: “When you reply to a letter you reveal your stand — posterity judges you by what you said at the time, and not by hindsight!” This led to the deepening of the crises and both the topmost judges and the senior colleagues did not act in a responsible manner.

The author believes that the October 10, 2011, event of Justice Dipak Misra taking oath before Justice J. Chelameswar, which resulted in Misra automatically becoming more senior and going on to become the Chief Justice of India, may have had a role in the four seniormost judges of the Supreme Court airing their differences in public during the unprecedented press conference held at the residence of Justice Chelameswar on January 12, 2018. Nariman writes: “And it is now apparent how bitterly it soured relations between them, and divided what up to then was (to the public at least) a seemingly undivided court!”

Hostility between the seniormost judge (Judge No. 2) and the Chief Justice precisely on account of similar situations has occurred in the past as well, such as between Justice Kuldeep Singh and Chief Justice Ahmadi, and between Justice P.N. Bhagwati and Chief Justice Y.V. Chandrachud, where seniority was established merely on account of the order in which the oath was administered at the swearing-in ceremony of the judges. In both
cases, by virtue of this seniority, the later became the Chief Justice of India. This resulted in strained relationships between these two sets of judges, but they did not take the rifts within the collegium to a public platform.

Nariman cites instances of judicial orders where this is clearly visible. He points to how Justice Bhagwati, during the hearing of the First Judges case in the 1980s, made the then

Chief Justice of India, Justice Y.V. Chandrachud, file an affidavit in the Supreme Court to explain the appointment and transfer of a particular high court judge. Justice Bhagwati went on to note in his judgment that the affidavit was “delightfully vague”.

God Save the Hon’ble Supreme Court is a highly academic work but written in an easy style with a great flair and command over the English language. Each chapter is packed with anecdotes drawn from the writer’s long innings at the bar and his close interaction with judges not only of our own Supreme Court but judges dealing with (British) Common Law as well as the (European) Civil Law traditions.

Written in his inimical style, the book is a delight to read for any practising lawyer, or a student of law. But it also needs to be read by our policymakers, lawgivers, politicians and bureaucrats for it contains a wealth of information about the bar, the bench, and issues that concern us today, including a chapter on minority rights within a majoritarian rule, a special chapter on Justice V.R. Krishna Iyer, whom he describes as a “Super Judge” and another brilliant chapter on the importance of advocacy in constitutional cases.

The writer is a feminist legal scholar and women’s rights lawyer based in Mumbai.