Anurag agarwal: Judicial Volcano: Silentium Est Aurum

Last week we witnessed the unprecedented – four judges of the Supreme Court of India held a press conference and washed dirty linen in public. The judicial volcano, which must have been building up for quite sometime, had erupted. It is not very often that such serious accusations are made against the highest judicial authority – the Chief Justice of India – in the country, and must be the very first time when they have been made by brother judges and that too in public.

Issues against the working of the judges are typically raised by the lawyers, political masters, media-persons, the so-called civil society, at time disgruntled litigants, and habitually by everyone to label the working of the judicial system as slow and tardy. But, insiders, taking the job onto themselves, is rather strange. There must have been compelling circumstances to warrant such an action. Or, it could have been sheer helplessness coupled with frustration which might have led them to take the unparalleled step.

Let us have the constitutional position clear.

The judges of the Supreme Court and the High Courts – excluding the Chief Justice – are called puisne (pronounced puny) judges are in no way inferior or subordinate to the Chief Justice as far as judicial competence and power are considered. They are not bound by a non-judicial observation made by the Chief Justice, who including the CJI, is simply primus inter peres - first among equals. Administrative powers of the Chief Justice give him the edge over other judges, which must be exercised with caution and due discretion, and not arbitrarily. Exercise of discretion has to be tested on 'reason and relevance.' In judicial matters, the Chief Justice, while sitting in a bench with other brother and sister judges, in no way has veto power. Often there have been judgments pronounced with the Chief Justice being in minority position, and that is the case also in the US Supreme Court and courts in other evolved jurisdictions.

Keeping the flock together is difficult, and when it is about the intelligent and constitutionally powerful judges, the task even for the Chief Justice is not easy. Dissent is the bedrock of democracy. Independent and fair judiciary cannot even be imagined without the right to disagree.

In a sense, the judicial volcanic eruption is a positive development which vindicates the stand that each judge has a mind of his own, has been provided with sufficient protection by the Constitution of India which ensures that he is not always trying to figure out the mood of the head of the institution, and, thus, can think and work truly independently. Unfortunately, but true, there are several institutions where one is made to understand by the head from day one that one's survival depends on following and practising 'your wish is my command' without fail. Robustness of the constitution is thereby proved.

Head of any institution has to take people along, and many a time there are dissenters, trouble-makers, people speaking the truth in the bluntest manner, people lacking diplomacy and tact, people hell-bent on making the life of the head difficult at every given opportunity, and so on and so forth. How can one keep everyone aligned to the vision and mission? With menial workers, it can be by using carrot and stick policy, however, with intelligent class, discussion appears to be the only method. Higher the level of intellect, higher should be the level of engagement in debates, deliberations, arguments and counter arguments. Intellectual superiority, rather than one's position, should be the factor determining what view prevails.

In such situations, absence of discussion is a sure sign of decay. Without going into the merits of the instant matter, one can easily say that judges are ought to speak through their judgments and to quote Francis Bacon, "a much talking judge is an ill-tuned cymbal." Issues could have been resolved by talking as the legendary Chief Justice Marshall of the U.S. Supreme Court – he was the Chief Justice for more than three decades – used to do. He said, "to listen well is as powerful a means of communication and influence as to talk well."

No wonder, if speech is silver, silence is gold - silentium est aurum.