Missing in Supreme Court: A spirit of collegiality

The way in which the apex court has been run in the past few months is not just a matter of debate, but of acute public disquiet.

Written by Fali S. Nariman | Updated: April 18, 2018 12:21:45 am

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The Supreme Court of India (Express Photo by Tashi Tobgyal)

From January 2017 onwards, landmark judgments have been handed down by different benches of the Supreme Court of India (benches of five, seven and nine judges). The same period also witnessed hitherto unprecedented events — a sentence of imprisonment imposed by a bench of seven judges of the Supreme Court on a sitting judge of a high court for committing contempt of the Supreme Court; and the public expression of protest by four of the seniormost judges of the Supreme Court against the administrative actions of India’s Chief Justice. Together, these events and occurrences recall the opening lines of a literary masterpiece (A Tale of Two Cities by Charles Dickens): “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness… It was the spring of hope, it was the winter of despair.”

Jeremy Bentham was the 18th century reformer of law and politics. He was a staunch proponent of “enacted law”, and an avowed enemy of “judge-made-law”. He, disparagingly, characterised his country’s highest court as “Judge & Co”. In his book on judges (1992), David Pannick QC writes that: “The way in which ‘Judge & Co’ is run is a matter of interest and will increasingly become a matter of public debate.”

In India, the way in which the Supreme Court has been run these past few months has become not just a matter of interest or debate — it has become a matter of acute public controversy, causing much disquiet and concern.

Justice Michael Kirby, who has visited India on innumerable occasions, had said, when sitting as judge of the High Court of Australia, that country’s highest court, that dissension amongst judges in the highest court of any country is by no means an unusual phenomenon. And that “whenever we think that the tensions and stresses in the High Court of Australia reach unendurable proportions we would do well to read the histories of the United States Supreme Court where animosities have so frequently poisoned personal relationships and have not always been cloaked with the genteel observance of form which has usually marked at least the external face of our country’s highest court”.

In a 1995 publication, conflicts inside the Supreme Court of the United States have been described in stark, graphic terms: “Filled with wonderful vignettes and telling anecdotes, battles illuminate the court’s legendary and little-known clashes from John Marshall to Ruth Ginsberg and help us understand why they fight, how they fight, and why their fights matter. In the process, it reveals a long tradition of strategic flattery, cajolery, name-calling, threats, subterfuge, and sermonising — all in an effort to win over or run over fellow justices!!”

In conflicts within the Supreme Court of the United States, “combat supersedes collegiality” (thus described in Philip Cooper’s book, 1995, “as an inescapable fact of life in the Marble Temple”).

We in India have overlooked the importance of a spirit of collegiality amongst judges — a fact stressed in a 2004 reported decision of India’s Supreme Court. Writing the judgment of the court, Justice R C Lahoti (later Chief Justice of India from June 1, 2004, to October 31, 2005) quotes Harry Edwards, then chief justice of one of the United States Courts of Appeal “that an aspect of judicial practice that has seemed increasingly important over the years has been the practice of collegiality: and I mean an attitude among judges that says, we may disagree on some substantive issues, but we all have a common interest and goal in getting things right…”

“We are, in a word, one another’s colleagues. An attitude of collegiality means, in practice, that we respect one another’s views, listen to one another, and, where possible, aim to identity areas of agreement… Collegiality does mean, however, that, even when I disagree with another judge, I recognise that we are part of a common endeavour, and that each of us is, almost always, acting in good faith according to his or her own view”.

In the United States when its Supreme Court is in session, the 10 a.m. entrance of the justices into the courtroom is announced by the marshal with the following traditional chant: “The Honourable, the Chief Justice and Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honourable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honourable Court!”

I suggest that, in desperate times like these, when the spirit of collegiality has been thrown to the winds, it would not be inappropriate for us to adapt that last sentence in the above quoted traditional chant as the fervent prayer of India’s citizens: God save the republic of India and the honourable Supreme Court.

The writer is a constitutional jurist and senior advocate in the Supreme Court

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