Amidst the views and counter views on #JudgesMutiny what has been ignored is that our judicial system expects, and in fact thrives, on dissent. I regard the Press Conference as an expression and assertion of the independence of the judiciary, which in the present times needs to be asserted more frequently than ever before. Therefore, an expression of dissent by a judge, albeit in a new forum, must not be seen as a deviant act. In this article, I argue that the independence of judiciary also includes independence of one judge from another, and that ability of a judge to take a dissent or a different view is central to advocacy and development of the law.
Independence of the Judiciary vis-à-vis an independent judge
The recent history of the Supreme Court would demonstrate that non-judicial threats to judicial independence emanate from the executive, and where the executive is overwhelmingly ominous, this threat can also translate into legislation. The executive has succeeded in the past, but mostly the Supreme Court of India has retained its independence. However, the question that has not been asked is that while the Supreme Court of India may have retained its independence, whether its judges are or have remained independent enough. The question is and always has been that of the degree of independence.
While measuring the degree of judicial independence we often deploy the yardstick of the institution being able to distance itself from the executive and the legislature. While referring to the judiciary we often forget that while the judicial system is one and a judge is expected to represent the institution, yet at the same time every judge is also expected to be independent of any other constituent of the institution or a person. Every judge is expected to hear, act and decide individually, even when acting in a collegiate sense. But it is seldom asked whether one judge of a court is independent enough to take his or her own view irrespective of how other judges perceive. In fact, law reviews and journals are replete with examples where puisne judges sitting indifferent benches have agreed to inconsistent judicial views. It has compelled one scholar to conclude that there is no such thing as the Supreme Court of India, but there are ‘Supreme Courts of India’. Judges are promised security of tenure to insulate them from shifts in the popular will and expressions of popular displeasure.
It would be impermissible for a judge to abstain from expressing disagreement merely because it is inappropriate to express disagreement in public gaze or to avoid unpleasantness or even to ‘play along’ with the presiding judge. Justice Heydon, in his lecture delivered on January 23, 2012 at the Cambridge Law Faculty and the Inner Temple observed that it would be wrong for a judge to refrain from expressing his individual view in order to “to avoid lowering the public reputation of the institution, or to seek to achieve the appearance of unity and uniformity for its own sake.”
There are countries that do not allow the name of the judge to be printed in the judgment and also those which require the unanimous view to be expressed. Fortunately, that is not our tradition. It will be considered shocking if a judge does not express his mind, especially if it is different from the view held by the majority or other judges. In this regard the oath of a judge of the Supreme Court is relevant. As per Part III of the Constitution, the Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:—
“I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”
Therefore, a judge of the Supreme Court is expected to affirm his allegiance to the Constitution of India and is expected to perform his duties as per his judgement “without fear or favour”, and to uphold the Constitution and the laws. A judge of the Supreme Court is under oath to bear allegiance only and only to the Constitution of India and is expected to discharge his duties exactly as per his personal judgement ‘without fear or favour’. Therefore, the question of succumbing to what in his or her view is judicially unacceptable or is otherwise infraction of the Constitution and the laws should not arise. It is more so because in the last 25 years it has become acceptable for the judges to apply their individual social philosophy in laying down the law or issuing directions – if that is not the individualistic expression of a judge, then what is?
Expression of Dissent
As Heydon L.J., stated, “Judicial independence can be threatened when judicial majorities attempt to muzzle minorities.” It submitted that ‘Judicial majorities’ would also include a single powerful individual who is capable of persistently ignoring the lone as well as the collective voice of his peers. The call for adherence to the conventions of the Supreme Court is laudable, but not when it is in apparent conflict with ‘Constitutional morality’.
Many writers and spokespersons have concluded that it was an unacceptable breach of the convention of the Supreme Court and unprecedented act for which the judges need to be impeached. I disagree – and more so because I am not sure if all those people who have labelled the act of holding a press conference as ‘misconduct’ are fully aware of all the facts. The press conference referred to only two instances, first being the issue of allocation of the case dealing with the issue Memorandum of Procedure, and the second and the tipping point of the issue of allocation of the seeking inquiry into the death of Judge Loya. I simply believe that there are many more unspoken (or unspeakable) things that finally led to the press conference. No one knows what they are, and perhaps we will never know. The option of simply succumbing to the view of the majority is inconsistent with the legal and judicial training of the judges; and therefore, to expect them to stay quiet in the apparent interest of the institution would be destructive of the confidence in the judiciary and the rule of law. We must never forget that the Supreme Court is final not because it is infallible, but it is infallible because it is final.
Talha Abdul Rahman is an Advocate on Record at the Supreme Court of India.
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