Supreme Court of India (AP)

NEW DELHI: The Supreme Court last week startled many by blurting out what has been disturbing judges for nearly a decade. “It is becoming more difficult to render justice in a fair, impartial and fearless manner” because of a demoralising atmosphere created by some unscrupulous people, it said.

What is making it difficult for the judges? Are they not bound by their oath to render justice without “fear or favour, affection or ill-will”? The SC judgement explained, “It has become very common to members of the bar (advocates) to go to the press/media to criticise judges in person and to commit sheer contempt by attributing political colours to judgments.”

In a warning, it said, “Whenever any political matter comes to the court and is decided, either way, political insinuations are attributed by unscrupulous persons/advocates. Such acts… denigrate the judiciary itself and destroys the faith the common man reposes in the judicial system.”

Shrillness in attributing motive to a judge for a judgment is a recent development, since about a decade or so. Earlier, it was discussed in hushed tones in private gatherings or in less frequented corners of court corridors. With proliferation of online media, competitive journalism has stretched traditional boundaries for criticism of judgments and, backed by a few activist lawyers, entered the zone of attributing motives to judges.

This is not to brush under the carpet glaring mistakes by judges, both judicially and privately. Highlighting these is also an important public duty, both of the media and advocates. But it would do no justice if each act of every judge is viewed through tinted glasses. When suspicion becomes the primary crop in the fields of social media, it neither strengthens the principle ‘Caesar’s wife must be above suspicion’ nor meaningfully furthers the nearly 100-year-old principle ‘not only must justice be done, it must also be seen to be done’ [R vs Sussex Justices, ex parte McCarthy, (1923 AER 233)].

The SC’s fears about increasing difficulty in rendering justice “in a fair, impartial and fearless manner” is also becoming true for selection of persons for appointment as judges of the SC and HCs. No sooner it becomes public that some names are being considered for appointment as judges, the vilification exercise gets seeded through circulation of unsubstantiated material on social media.

Persons so vilified get no chance for redemption. Social media campaigns put enormous pressure on the collegium led by the Chief Justice of India, in which two nine-judge constitution bench judgments in 1993 and 1998 had reposed faith for recommending the best suitable person for appointment as a judge.

In 1982, the SC in S P Gupta case [1982 (2) SCR 365] had given primacy to the executive in appointment of judges while underlining the importance of consultation with the CJI. But through subsequent judgments in the 1990s, the SC had, with the help of lawyers, devised a collegium system headed by the CJI as the sole panel that would select persons for appointment as constitutional court judges. Executive’s role in selection of judges was erased.

Giving its opinion on a Presidential Reference under Article 143(1), a nine-judge bench of the SC on October 29, 1998 had said, “Where there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own HC. All that needs to be recorded when recommending him for appointment is that he has outstanding merit.

“When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent HC is situated is not represented on the SC bench. All that then needs to be recorded when making the recommendation for appointment is this factor.”

Importantly, what the nine-judge bench said was, “Strong cogent reasons do not have be recorded as justification for a departure from the order of seniority, in respect of each senior judge who has been passed over. What has to be recorded is the positive reason for the recommendation.”

In October 2015, a five-judge bench had struck down the legislation on National Judicial Appointments Commission that attempted to insert executive participation, along with the CJI and two seniormost SC judges, in selection of persons for appointment as constitutional court judges. Activist lawyers led the charge against NJAC and fervently argued that it would gravely endanger judicial independence, which is cardinal to the justice delivery system. The SC agreed.

Not many months after NJAC was struck down and ‘independence of judiciary’ was strengthened by reiteration of faith in the wisdom of the CJI-led collegium, the doubting Thomases among a section of lawyers have sprung into action and are doing what they do best — keep the judiciary on tenterhooks.

Prior to appointment as an SC judge, a person generally spends 10-15 years as an HC judge. A decade is generally long enough for a judge to learn and imbue the ethos and demands of the constitutional post and recognise the paramountcy of independence, both from the government, the bar and civil society, in discharging her/his duties.

But as it appears, it is not enough for persons to pass the test of experience, ability and suitability in the eyes of the CJI-led collegium. Those in the zone of consideration must also sail through the scrutiny of lawyers who have made it their business to ensure that judges remain ‘independent’.



In Video: Supreme Court may soon find it difficult to pick judges for SC and HCs