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An estimated 10-minute read
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Earlier this month, on the 7th of September, noted jurist and senior advocate Fali S. Nariman proffered a piece of advice (he called it an unsolicited suggestion) to the Supreme Court: the citadel never falls, except from within.

This is an uncalled-for reply, to the unsolicited suggestion.

Justice Chelameswar, one of the five judges that constitute the Collegium, recently broke ranks and wrote to the Chief Justice of India. We know this because this was reported in the media. The media did not report whether it had been notified of this development by the judge, the Chief Justice or anyone else.

We are told that the judge wrote about his perception that the proceedings of the collegium were opaque, and inscrutable even to the judges who made up the collegium. He wrote that he did not wish to attend future meetings of the collegium and preferred to participate and provide his inputs on the basis of written proceedings. We know this, firstly because this is what the press reported, and secondly because The Hindu reported two days later that it managed to get the judge to speak. He reportedly confirmed having written a letter and said that he had no personal axe to grind, and he felt he owed it to society, to insist on some level of transparency in the system.

Fali you start by praising Justice Chelameswar. You call him an otherwise excellent and sober judge in the Supreme Court but are quick to put him in his place. You call him Judge No. 5 in the hierarchy.

It is unfortunate that you think that there is a hierarchy, or indeed there is a Number 5 in the Supreme Court. Each judge of the Supreme Court is no more and no less “higher” than any other. A bench comprising of a greater number of Supreme Court outweighs one which has fewer judges, but I doubt if anyone has ever argued (or tried to argue) that a judgment is inferior because it was delivered by judges Number 17 and 18 rather than Numero Uno and Dos.

Indeed, we have it on good authority that even the Chief Justice is fallible and has no greater powers concentrated in his hands – even administratively. I recall of course, Dr BR Amedkar, who told the Constituent Assembly, on the 24th May 1949, that

With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the President or the Government of the day. I therefore, think that is also a dangerous proposition.

In almost every parallel judicial system, the judges of the court are considered equal. They are all equally puisine judges – the Chief Justice may be the primus inter pares – the first amongst equals - but he has no special powers other than those conferred on his office by an act of Parliament.

Number 5 is a judge of the Supreme Court, the same as Number 1 and Numbers 2 through 4. His opinion, judgment and conviction carry the same amount of weight as anyone else’s.

Surely you ask, what basis do I have for such an outrageous suggestion? How can I dare equate the Chief Justice of India with a mere newly-minted Supreme Court judge.

I will shelter behind the written word of the Constitution of India.

What happens if the Chief Justice of India is unable to “perform the duties of his office”? The Constitution tells us that the President can appoint one of the other Judges of the Court to occupy the office. The Constitution makes no distinction or reservation from all the duties that the Chief Justice performs – administrative, judicial and ceremonial. The President appoints one of the Judges to perform the duties of the office.

Lets take this to the next level – what if the office of the Chief Justice of India is vacant? The incumbent having retired; or having been elevated to a Higher Heavenly Court? The Constitution again tells us quite unambiguously - the President can appoint one of the other Judges of the Court to occupy the office.

The office of the Chief Justice of India is neither achieved, nor affected by a Judge’s date of birth, nor by the date of his having become a judge of the Supreme Court. If he is a Judge of the Supreme Court, he is eligible for the President’s consideration. You have to concede that if we focus solely on what the members of the constituent assembly wrote in the Constitution of India, nothing prevents the appointment of the best judge (rather than the longest serving), to the office of the Chief Justice of India. Even in the two Judges’ Cases and the Reference, this was never in challenge, or adequately addressed, was it? Surely you will concede that the nation’s highest conscience keeper ought to be the best candidate, rather than the one who got there by an accident of the date and time of his induction to the court.

Wherefore then Mr. Nariman, this reference to a hierarchy? Why perpetuate a myth which you are only too well aware is hollow and baseless?

You criticise Number 5 for unfairly putting Numbers 1 to 4 at a disadvantage. [T]heir response to this charge must remain mute since the time-honoured principle of judicial rectitude prevents these four judges from going public.

Come come Mr Nariman, this judicial rectitude never prevented our Chief Justice – also an otherwise excellent and sober judge in the Supreme Court ­- from shedding tears in public, nor from publicly criticising the Prime Minister’s Independence Day speech - "I listened to the PM's speech. I had hoped he would speak on the appointment of judges”. If Number 1 is commended for voicing his conscience’s concerns about the state of the judiciary, why condemn Number 5 for doing no more? Surely the Prime Minister’s speech from the ramparts of the Red Fort was not within the ambit of judicial review till now. Let us embrace these winds of change and not hide behind false decorum. The honourable men who first sat as the first judges of the Supreme Court of India have long since died. “Trust us for we are the unsullied, unelected guardians of your constitution” doesn’t really work anymore.

Mr Nariman, you would have Number 5 commit Sepukku – the ritual suicide committed voluntarily by samurai to die with honour rather than fall into the hands of their enemies. You wish Justice Chelameswar had resigned from the Court and then spoken. If a judge in the collegium doesn’t like the way it functions (for lack of transparency or any other) he can quit and then complain about why he quit. People would then understand him better.

You quote Justice Munir – better known in these parts more as the brilliant author of the seminal work Law of Evidence - Muhammad Munir, than merely the Chief Justice of Pakistan.

You do Chief Justice Munir a great injustice by twisting his words. Chief Justice Munir was answering a query – what was a person to if he found a measure passed by Pakistan’s Parliament totally wrong and not in accordance with the true spirit in which the original Pakistan constitution had been framed. Fali you overlooked the reference to the measure passed by Parliament.

Munir’s querist was faced with a dilemma between following the Constitution and following the will of the people expressed through their elected representatives. Chalk and cheese; apples and oranges, Fali.

Fali you do know of the numerous judges and Chief Justices who spoke out after they retired from office. You also know none of them was taken seriously. You have had a ring-side view of the birthing and maturing of our judicial system – something very few else can lay claim to. Are you sure that none of the has-beens have ever come crying to you? Are you sure you never reproached them for holding their tongue whilst they were in office?

Number 5’s dilemma is between following the mandate of the Constituent Assembly, the Constitution (and indeed the self-serving Second Judge’s case”) or toeing the line of opacity, whimsical decision making and an artificial Omerta which denies the people of country – nay the members of that same Collegium body – the right to know who decided what, and for what considerations.

Mr. Nariman, I can’t help but commend to you the words of one of India’s best legal minds: the legendary Fali S. Nariman who stood up tall to the Supreme Court and drew the proverbial line in sand. He made a written submission which was reproduced in the October 2015 judgment in the Supreme Court Advocates-on-Record-Association case:

In other words would it be inappropriate for the Hon'ble Presiding Judge to continue to sit on a Bench that adjudicates whether the Collegium system, (as it is in place for the past two decades and is stated (in the writ petitions) to be a part of the basic structure of the Constitution), should continue or not continue. The impression in peoples mind would be that it is inappropriate if not unfair if a sitting member of a Collegium sits in judgment over a scheme that seeks to replace it. This is apart from a consideration as to whether or not the judgment is (or is not) ultimately declared invalid or void: whether in the first instance or by Review or in a Curative Petition.

You did not call the Chief Justice dishonest, unreliable or compromised. You did not question the integrity of any of those you stood up to. You did not have to. At stake was not their honesty or otherwise. The stakes were much higher – the need to demonstrate to posterity that those who had judged had not a whiff of any conflicting interest.

You spoke about the impression that the people would form in their minds.

Incidentally, number 5 told the press that he had no personal ambition nor desire for a post-retirement sinecure. You and I will both watch with much interest, I am sure, the other cookies crumble, in the next few months.

Can I also commend to your attention a wondrous autobiography – by the same venerable Fali Nariman – the author admirably said

I don’t see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment – not necessarily in superiority of wisdom or competence. I see no reason why all the judges in the highest court should not be consulted when a proposal is made for appointment of a high court judge (or an eminent advocate) to be a judge of the Supreme Court. I would suggest that the closed-circuit network of five judges should be disbanded.”

How is this any different now?

Can you somersault and claim now that merely by ventilating his concerns Number 5 is going to bring down the citadel?

Number 5 stands on your shoulders Fali.

He carries forward your legacy, shares your concerns. He needs your support. Do not recuse yourself from this resurrection now. You helped shape the judiciary in the Second Judges’ case. You lived to regret it. You called that judgment which was the foundation of this confounded collegium A case I won – But which I would have prefer to have lost

You have recycled your words from your autobiography. The citadel indeed falls never, except from within.

The question is: are you, the unquestioned insider and a witness to the crumbling walls and compromised pillars, going to lend your weight to its repair and reinforcement, or will you take the easier path and counsel Number 5 to flee?

Number 5 has taken a principled stand. He is not abdicating the responsibility that your eloquence in that case imposed on him. He is not stepping down from the collegium, nor refusing consultation. All he asks is why the Supreme Court holds itself above transparency, why it expects the man on the street to believe in its infallibility, honesty and impartiality. You don’t.

Harpreet Giani is a practicing Advocate in India and Dubai DIFC; and a practicing barrister in England & Wales at 33 Chancery Lane, London WC2A1EN.

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