In the corridors of justice, writes Kapil Sibal

Under our constitutional scheme, the Supreme Court occupies a unique position. The power of judicial review, the felicity with which it entertains Public Interest Litigation (PIL) and its selective use of Article 142 of the Constitution of India in aid of which, the Court bypasses even established procedures to do complete justice in the case earns the institution both kudos and justified criticism.

We credit the Supreme Court with many landmark decisions. The Court has shown exemplary courage in protecting constitutional values, bringing to book the corrupt and protecting the poor and marginalised whenever the occasion arose. At the same time, by entertaining PILs on certain occasions, it has rendered judgements which have, perhaps unwittingly, adversely impacted the economy of the country. In some ways, NPAs of banks are the result of these decisions. Omnibus cancellation of telecom licenses and coal block allocations are cases in point. The extent of damage caused cannot be assessed in just economic terms. Such decisions tend to shake the confidence of foreign investors who, for no fault of theirs, found their investment set at nought. The third element, the use of Article 142 of the Constitution has even more serious consequences. Such power, according to the Court, can only be exercised in the absence of remedies available in law. Yet, the Court has often deviated from this salutary principle and used Article 142 to do what it thinks best. The hierarchy of Courts allows errors to be corrected when the lis moves up the hierarchy, ending in the Supreme Court. But if the Court of last resort, either through PILs or in the exercise of power under Article 142 acts as the Court of first instance, litigants are left remediless. Individuals and entities have suffered unjustifiably at the hands of the Court.

It is in the exercise of its administrative functions that the Court has been found even more wanting. The Supreme Court exercises administrative functions in three ways — (1) in the management of the administration that supports its judicial functions; (2) by being the final arbitrator in the appointment of Judges of the Supreme Court as well as to the High Courts and; (3) the power of transferring Judges from one Court to another.

The Chief Justice of India has the power to determine the roster for hearing cases. Eyebrows are occasionally raised when some significant matters are listed before a particular combination. Why the Chief Justice, in the presence of the Prime Minister, publicly announced that three significant cases will be heard during vacation caused concern. Why those particular cases were picked up for hearing during vacation is inexplicable. Such decisions become controversial outside the courtroom. This adversely impacts the dignity of the institution. Unfortunately, there are no guidelines which give confidence both to the litigant and the legal fraternity that cases would be heard in their turn based on transparent procedures. The moment the system becomes opaque, it gives rise to unnecessary speculation. The Court, in exercising judicial powers, expects transparency from the government. It should adhere to the same principle when exercising administrative power also.

Functioning of the collegium system is also charged for opacity. Non-participation in the collegium, making unanimous recommendations in the absence of unanimity, and open dissent are matters for which the Court has not earned laurels. When individuals with hardly any practice are elevated to High Courts, it makes us lose confidence in the wisdom of Judges who exercise the power of appointment. Why elevation of certain Judges was held back while others considered, again raises issues of transparency.

The third element in exercise of administrative power is the sole prerogative of transferring Judges of higher judiciary from one Court to another. In the recent past, transfers or holding them back has raised eyebrows. One recent example is of Justice Jayant Patel, Judge of Karnataka High Court, who quit the judiciary when transferred to Allahabad High Court. If he had accepted the transfer, he would have been the third senior-most Judge in the Allahabad High Court while in the Karnataka High Court, he would have, after October 9, 2017, ordinarily become the acting Chief Justice. If transfers are made in a non-transparent fashion, even though they are done unanimously, people will speculate. We know that Justice Patel, when in Gujarat, had directed a CBI investigation into the Ishrat Jahan fake encounter case, which led to the arrest and subsequent charge-sheets against senior Gujarat police officers. This has not happened for the first time. The controversial transfer of Justice Rajiv Shakdher from Delhi High Court to Madras High Court and of Justice Abhay Mahadeo Thipsay from Bombay High Court to the Allahabad High Court has not enhanced the status of the Supreme Court. Justice Rajiv Shakdher apparently set aside the lookout notice in 2015 issued by the IB against Greenpeace activist Priya Pillai. Justice Thipsay, as a Judge of Mumbai Sessions Court, had imposed life sentence on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat carnage. This was a case transferred out of the Gujarat High Court by the Supreme Court, to be tried by a Mumbai Court. The reason for speculation may or may not be correct. But in the absence of a transparent system for such administrative decisions and the opacity surrounding them, the judiciary gets scarred.

The time has come for an overhaul of the judicial system. While the electorate can replace the government every five years, that luxury is not available when dealing with Judges. They alone can instil confidence not just within the legal fraternity, but in civil society. That confidence is on the decline.

The author is a member of the Rajya Sabha, and a senior Indian National Congress leader. Views expressed are personal.