—Dr. Rohit De, Assistant Professor at Yale University, and Dr. Tarunabh Khaitan, Associate Professor at the Universities of Oxford and Melbourne
On the 12th of January 2018, four of the five senior-most judges of the Indian Supreme Court who constitute its ‘collegium’ held an unprecedented joint press conference. They released an open letter they had written to the fifth member of the collegium, the Chief Justice (CJ) of India and complained that long-standing conventions governing the CJ’s role as master of the roster were being ignored.
The immediate provocation is the allegedly arbitrary and politically influenced use of the administrative powers of the CJ of India. Because judges in the Indian Supreme Court sit in benches of varying size rather than en banc, normally the composition of each bench is decided randomly. Constitutional practice, however, has permitted the CJ to override the automated system of assigning cases for purposes that include creating a more coherent doctrine, speeding up or delaying a politically sensitive matter and preserving the spirit of the constitution. In practice, however, this administrative power has also been used to handpick benches comprising like-minded judges, so that a CJ’s judicial opinion is more likely to prevail. As legal scholar Nicholas Robinson discovered, between 1950 and 2011 CJs found themselves in a minority in only 10 cases decided by a constitutional bench. What, then, precipitated the controversy at hand? It is the suggestion that these selective allocations might primarily benefit the governing political party that puts this case on a different, and dangerous, footing.
What unites these four judges is not ideological preferences (they have differed sharply in the past), nor any apparent personal gain, but only the fact that they represent four out of the five members of the Supreme Court collegium. The collegium, a body of the five senior-most judges, emerged in 1993 in response to series of cases initially triggered by Indira Gandhi’s authoritarian quest for a ‘committed judiciary’ in the 1970s. Since then, the collegium has evolved into a bulwark for an independent judiciary. Given this history, one can appreciate the especial sensitivity of the members of the collegium to the separation between the judiciary and the executive.
An allegation of this nature would be bad enough in normal times. In the current political context in India, they are particularly worrying. The present impasse arises amidst a sense of creeping authoritarianism, characterized by a callous disregard for constitutional propriety, even as the government stays (just about) on the right side of the law. To be sure, the law has been pushed to its limits too—such as when the government shockingly argued last year before the Supreme Court that Indians do not have the right to privacy. But it is the extra-legal constraints embodied in constitutional customs and conventions, that rely on a sense of decency, decorum and shame for their observance, that are being especially disregarded. Signs of this subtle form of authoritarianism include the fact that there is no official leader of opposition in the lower house of Parliament, that Lt Governors (appointed by the central government) have made it nearly impossible for elected local governments to function, that cases previously dealt with by one set of judges have been increasingly reassigned to other judges, that former judges and army commanders have been given politically sensitive posts, that non-financial matters have been inserted into money bills to override the upper legislative chamber’s veto, that legislatures—especially in the states—are in session for ever fewer days every year, that important bills are pushed through without scrutiny by parliamentary committees, that vacancies in watchdog institutions like the Information Commission, High Courts and the Lokpal (the anti-corruption watchdog) remain unfilled, and that court decisions—even like the one ordered by the Supreme Court making a universal biometric identity card non-mandatory—have been circumvented.
All of these things have been achieved by exploiting the silences and gaps in the law and by ignoring customary practice. True, every government has breached conventions of institutional propriety in the past, but it is the scale and the frequency of recent breaches that make the current scenario precarious. Indira Gandhi’s authoritarianism in the ’70s was in your face: hard to deny and harder still to ignore. Today’s neo-authoritarianism is subtle, it creeps up on a democracy because it flaunts the mask of legality even as it undermines constitutionalism. The administrative powers of the CJ has emerged as a point of political conflict in Pakistan, Bangladesh and Nepal as well; but in all the above cases, the CJs were attacked by the executive for using these powers to challenge government policy. In the current crisis in India, however, the suggestion is that these powers are being used to favour the government.
This is the context in which the four judges emphasized the ‘well-settled and time-honoured conventions guiding the Chief Justice’ in their open letter. This outspokenness has precedent. During the Emergency, outgoing CJ Sikri publicly told his successor AN Ray that he would ‘rue the day he accepted the office’ by superseding more senior colleagues disliked by Indira Gandhi. In 2000, President Narayanan went beyond the brief of a ceremonial head of state to abort a governmental attempt to change India’s system of parliamentary democracy. In the neighbourhood, in Pakistan and Sri Lanka, lawyers took to the streets when Supreme Court judges were ousted.
Judicial independence in India survived the Emergency because the Janata government that succeeded Indira Gandhi’s refused to play tit-for-tat. Instead of superseding ‘pro-Indira’ judges in retaliation, it took the sagacious advice of the then Law Minister Shanti Bhushan to respect established constitutional conventions governing the seniority rule in appointment of the CJ. A similar wisdom is required on the part of all constitutional actors today. The judges of the Supreme Court, acting as a full Court, must decide to subject the administrative powers of the CJ to norms of transparency and accountability. Clear rules need to be drawn up so that this enormous power to assemble a bench may never be exercised in order to predetermine the outcome of particular cases. Furthermore, the system will be more robust if these administrative powers are vested not in the CJ alone but in the collegium collectively. Apart from calling for the issue to be resolved by the full court, Parliament and the government should stay out of the dispute.
Admittedly, these recommendations amount to a demand that breached conventions be legalized, and that the checks on the discretion in question be formalised. Even so, we recognise that legalization of all constitutional conventions is neither possible nor desirable. Ultimately, what will save the democracy is a constitutional culture where key functionaries are willing to call out serious breaches of constitutional norms, whether legal or decorous. Sometimes this requires speaking out of turn—an act of unseemliness that is exceptionally justifiable when the stakes are as high as our commitment to constitutionalism. Rather than smearing them as ‘mutineers’, as some media outlets have done, these four judges must be celebrated for their patriotic defence of India’s constitutional democratic republic.
 Nicolas Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts, The American Journal of Comparative Law, Volume 61, Issue 1, 1 January 2013, pp 173–208.
 See generally, ‘India’s Top Judges Accuse Chief Justice of Undue Influence in Hearings’, The Telegraph http://www.telegraph.co.uk/news/2018/01/14/indias-top-judges-accuse-chief-justice-undue-influence-hearings/
 These judges represent a diversity of positions on constitutional questions, such as Justice Chelameswhar’s minority view upholding the constitutionality of the National Judicial Appointments Commission, which would have greatly circumscribed the role of judges in judicial appointments. See Supreme Court Advocates-on-Record Association v. Union of India, 2015 (https://indiankanoon.org/doc/66970168/)
 Supreme Court Advocates-on-Record Association v. Union of India, 1993 (https://indiankanoon.org/doc/753224/)
 President Narayan’s Address to Parliament, 2000, http://www.india-seminar.com/2000/487/487%20narayanan.htm