So much has been said and written about some of the disastrous judgments that have recently emanated from the Supreme Court. Critical observation has been bestowed on the facts and law and the judgments in these cases. But one fundamental faultline has escaped attention, and this may well be one of the main roots of the problem. Simply put, it is the question of picking the judge for the case.
Lay people think of the Court as one institution, somewhat faceless, which follows one body of law and reaches the only conclusion mandated by statute and precedent and reasoning. However, actuality is far different. The same law and the same set of facts can bring forth entirely different decisions. It is not uncommon to see judges on the same Bench take diametrically opposite views, or to see appellate courts reverse the first one, and sometimes get reversed in turn, all in the same case. Part of the reason is that judges have their personal ideologies, predilections and philosophies, they can be attuned to state or citizen; one judge can value the liberty of citizens while another may find it permissible to take liberties with liberty for the easier functioning of the government. That is why the choice of the judge to hear the case becomes so important — choose the man, choose the result as legal observers will often say.
Where the entire Court or a substantial number of its senior-most judges sit as one, the problem of picking the judge for the case is absent. However when judgments cascade from scattered benches of two and three judges as they do in the Supreme Court, the choice of judge may well be the inarticulate major premise of the result of the case. That is why both number and composition matter greatly in cases of constitutional and other importance. That is why seminal cases are heard by larger Benches, so that there is compatible seniority and balancing of views. All parties start equal and the battle is not won at the starting line.
Let us illustrate this point with Justice A M Khanwilkar, the judge whose performance has been sharply in focus recently. His judgment upholding the Prevention of Money Laundering Act in its entirety has given vast unchecked powers of search, seizure, summons and recording of statements, arrest and denial of bail to an Enforcement Directorate, which routinely institutes proceedings against those opposed to the ruling powers and other prominent persons. And the Act is not confined to narcotics and organised crime but extended to a wide range of ordinary criminal and other offences. All of which received Khanwilkar’s imprimatur.
Justice Khanwilkar’s ideology was sharply on display in other cases as well in his concluding days at the Court. He dismissed Zakia Ahsan Jafri’s plea against a suspect SIT closure of the horrendous Gujarat riots of 2002. But he didn’t just stop there. He virtually sanctioned police action against Teesta Setalvad, the civil liberties activist, for championing Zakia’s cause. This was without notice to Setalvad, an amazing departure from basic judicial norms. His words — “all those involved in such abuse of process need to be in the dock and proceeded with in accordance with law” — are chillingly reminiscent of Shakespeare’s lines in Julius Caesarspoken by Mark Antony: “Cry ‘Havoc’ and let slip the dogs of war”. The hounds of the Gujarat Police picked up the scent within hours to arrest Setalvad and the former Gujarat DGP R B Sreekumar. It was a chilling rewrite of Article 32 of the Constitution — freedom to come to court, but not freedom after you come. Within days, Khanwilkar, along with Justice JB Pardiwala, authoring the decision dealt a similar lesson to 13 tribal petitioners who had come to the Court seeking a CBI investigation into the death of 22 tribals, many of whom were relatives, at the hands of the Chhattisgarh Police and the notorious Salwa Judum. A fine of Rs 5 lakh was imposed on the petitioner who ran a tribal welfare NGO being “exemplary costs” as the Court decided that “no case worth the name” was made out.
One wonders why such severe deterrents are not handed out to central and state governments when they routinely file frivolous appeals.
The fourth, Zahoor Watali’s case, dealt with the grant of bail under the Unlawful Activities Prevention Act (UAPA), which has a restrictive condition similar to the PMLA’s. The Delhi High Court met the statute’s requirement with a 40-page order showing the absence of a prima facie case including non-admissible evidence and documents. Khanwilkar castigates it for expending so much labour, and says it should have taken the documents submitted by the police “as it is” and not analyse them too much. Amazingly, he set aside the bail granted by the Delhi HC. With him it was virtually heads, the executive wins, tails the citizen loses.
These are four solid nails driven into the coffin of personal liberty by this one judge of the Supreme Court.
Khanwilkar’s orientation is possibly no surprise, he has perhaps simply been true to himself and his philosophy. But this ought to be well-known to his leader. How is it then that Chief Justice N V Ramana, in his sole discretion, assigned this crucial case to Khanwilkar, accompanied only by two of the junior-most judges of the Court? This case cried out for balancing with larger numbers, seniority and judges of a different mould. Without that, it became a boxing match with the result which would surprise no knowledgeable watcher – liberty of citizen knocked out, honours to the executive.
It’s high time attention was focused on the role of the Chief Justice of India as Master of the Roster – deciding which cases should be heard or not heard, deciding the numbers on the Bench, and crucially its composition, especially in momentous matters. Right now it is sans guidelines and fetters, and without even consultation. As the Court routinely reminds us when it comes to our affairs, that is intolerable. If the collegium is preferable to the sole voice of the Chief Justice in selecting judges, perhaps it ought to be involved in selecting which judges hear the most important cases. Else the Sole Selector can determine the match. Hopefully, the new Chief Justice, who has got off to a flying start, will rectify matters. His performance, compared to his predecessor, is a grim reminder that our liberties are tied to retirement dates.
The writer is Senior Advocate at the Madras High Court