Schrödinger's cat in Supreme Court of India

Amit Kumar

amit kumar public org(This article was written on 13th January, 2018 in the wake of the press conference by four Supreme Court judges. Author feels that it has relevance now in the context of recent actions and inactions of the Supreme Court.)

The four Senior Judges of Supreme Court of India, the so-called guardian of the Indian Constitution, coming out openly in a press conference has kicked up a storm of opinions from all quadrants of the political cartesian-plane with the X-axis of Left-Right and the Y-axis of propriety, righteousness and morality. Even a literate man well versed in legal lexicon finds it difficult to make out the implications of the bold act.

Though it is true that the judiciary cannot claim itself completely free from the malaise that afflicts other organs of the state or administrative bodies, SC has been envisioned in our constitutional framework not just as an ordinary court rather as an  extremely important functionary of being the watch-dog of Indian constitution and hence, has been provided with enough independence and powers to ensure separation of power and to create checks and balances with the executive and legislature. This framework is an essential minimum for the working of any constitutional government and to stop it from sinking into authoritarianism of the executive.

It is this special status of SC to have it protected from the powerful executive in carrying out its constitutional mandate that resulted in certain privileges in favour of judiciary. Thus emanates contempt powers, salary protection, removal by impeachment, appointments etc. It is being nowhere indicated that this architecture does not result in lacunae and misuse. Yes, it does. But protecting the basic structure of our democracy is more important and so such powers were accepted. Let us now move forward taking this constitutional framework as sacrosanct in the context of our democracy.

If only serious and genuine arguments are to be considered, then those who see this behaviour of senior judges of SC not only as unbecoming of senior judges but also as blatant defiance of judicial equanimity and decorum, base their argument mainly on the premise that even if there was any problem or complaint, they should have taken administrative, legal or constitutional recourse. However, this unwarranted behaviour has only resulted in maligning the image of the judiciary and filling the citizens with skepticism about the future decisions of the SC.

It is empirically evident that an institution that loses trust in the eyes of the citizens only has one direction to go, that is of gradual ruination of itself. Experience shows that the loss of reputation and esteem for an institution gradually creates an atmosphere where people of  only the stereotyped nature, expectations and aspirations get included into the institution. A classic case of this nature is police organisations or the tax administration where the bad reputation of the institution very much attracts the candidates mostly of a rent-seeking and authoritarian behaviour.

Another reason is premised on the clichéd justification, “Give a dog a bad name and kill it." The danger here lies in the loss of reputation for the higher judiciary which may well be used as an excuse to bridle/control the SC and thus remove the final hurdle in right-wing’s vision for eating up the Constitution which it hates since its enactment. Certain attempts by executive (including previous) to cage SC have already been made in the form like Judicial Accountability Bill or the National Judicial Appointment Act which has since been declared ultra vires.

So, the loss of reputation of SC involves very high stakes and hence must be matched by commensurate risks to the judiciary or to the democracy for them to be accepted with bypass of other legal-constitutional means.

Other side of the argument is supplied by assuming that the senior members of SC must be aware of such high stakes involved in the loss of reputation for SC and for the four judges themselves; even the possibility of them getting impeached. So, the act of the four judges coming out in the press conference saying that the democracy is in danger is extremely grave one and hence must be taken as such.

This line of argument gains weight in the light of the ideology of Sangh which is very much in the power today and has held that constitution is not Indian enough and must be changed. This danger becomes very real when a central minister, Anant Hegde has openly spoken about their objective to come to power is “to change the constitution”. A similar adventure was attempted under the Sangh’s pressure earlier during Vajpai’s tenure in 2000-02 when "National Commission to Review the Working of the Constitution" was brought. However, the weaker coalition government of comparatively liberal-right didn’t cause much ripples.

However, this time hardcore right-ideology feels emboldened by the full majority government of the BJP with supporters who openly claim their allegiance to the Sangh unlike their predecessors in NDA-I. What is graver is the fact that this establishment has not shown any hesitancy in undermining constitutional positions, educational institutions, administrative bodies and now perhaps the watch-dog of the constitution itself.  

It is in this environment of suspicion that the Chief Justice of India, Dipak Mishra, who is allegedly considered ideologically closer to the establishment has been pointed out by the four judges for allegedly maintaining the case roaster in a partial way. Chief Justice is the master of the roster and assigns cases to different members/Benches of the Court as a convention.

To an outsider the maintenance of case roster may appear to be a non-issue blown out of proportions in the alarming press conference by the four SC judges. However, the case roaster can be used to allocate cases in such a partisan way that it kills the very purpose of the SC as a watch-dog; a back-door control of the SC.

For, example what if the hearing of the petition for probe into Sahara-Birla Papers was allocated to a different panel of judges. Perhaps the probe into the case would have not been refused and Prashant Bhushan might have not decried that incident as a "setback to fight for probity’. What if a different panel of judges is allowed to hear the petition to look into the case of alleged murder of Justice Loya who was hearing the case in which Amit Shah was the culprit in a murder charge?

These cases could have had serious political ramifications which are bound to have significant bearing on the future of Democracy in this country. And this is what the four judges have dared to speak out.

Perhaps, these four Judges have read about Franz Schlegelberger, State Secretary in the German Reich Ministry of Justice and Justice Minister during Hitler’s Third Reich, and decided to learn not to follow the flow when the political power goes berserk and leads towards destruction.

However, it is never known how history will take its course from here on-wards; will the four judges be impeached for their unprecedented act allegedly unbecoming of them; or the bold act of theirs would correct the alleged rot in the system. What time hides in its womb is the future of not just the four judges but also the future of Supreme Court and the democracy and its citizens. Whatever the consequences be, this single press conference is going to send ripples through the whole of India’s future.



Amit Kumar is a social activist, freelance writer and an active member of socially and educationally backward employees association in a public organization.


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