In times when Honourable Justices of the Supreme Court of India seem inclined to find blame with the beheaded instead of the beheaders, it becomes important to shine the light on the top court of our country. The Supreme Court’s ‘victim blaming’ verbal assault in court on Nupur Sharma sets a dangerous precedent for the country on the justification of violence. Incidentally, the Supreme Court of India is possibly the ONLY institution which has its own Blasphemy law – Contempt of Court. Through which it judges mere mortals for daring to question the sense, verbiage and conduct of the Justices. But, does the Supreme Court stand up to its own test? Is the Supreme Court of India an institution that follows what it demands unforgivingly from others or does it exist in contempt of its own diktats? There are 4 grounds to look at:

Flexibility in adhering to principles of Natural Justice

There are two basic principles of Natural Justice – rule against bias and the right to a fair hearing.

In 1993, by means of the Second Judges Case, the Supreme Court decreed the Collegium system of ‘Judges appointing Judges’ into existence, under the aegis of keeping the judiciary free from interference. A system which has no mention in the Constitution of India. No other democratic country in the world lets the highest court’s appointments be done by itself.

And this has had consequences. 12 of the 32 (38%) incumbent judges of the Supreme Court, all of whom have been appointed by a collegium of SC judges, have deep familial connections in the Judiciary and Governments (refer to list in the appendix). In fact, 2 future Chief Justices of India are offspring of Former Chief Justices of India. The data implies nepotism at play – the collegium system is fostering and advancing not only those with merit but also possibly those with familial connections.

In August 2014 the parliament got its act together and voted across party lines for a National Judicial Appointments Commission (NJAC) that would replace the collegium system. In 2016, a constitution bench of the Supreme Court heard a case on the constitutionality of the NJAC and struck it down. Here is a situation, where the Supreme Court heard a case about a new parliamentary approved procedure to appoint Judges to the Supreme Court and ruled that the current collegium system where the incumbent judges of the Supreme Court have the power to appoint new judges is the ONLY fair procedure.

This passes neither the rule against bias nor the right to a fair hearing – surely, there is a case for conflict of interest in the Judges hearing and deciding a matter which impacts their own discretionary power to appoint new judges? In fact, one of the Justices, Kurian Joseph, who gave the original verdict against NJAC openly declared in 2019 (after his retirement) that he regrets the decision.

Demanding transparency from others while exempting itself

The Supreme Court of India seems to be particularly keen on demanding transparency when a chance presents itself (on others). In 2018, the supreme court ushered in electoral reforms by demanding that politicians (and their spouses) declare their assets and sources of income to qualify for contesting elections. It in fact directed “Their assets and sources of income are required to be continuously monitored to maintain the purity of the electoral process and integrity of the democratic structure of this country”.

And how do Judges of the Supreme Court themselves fare on the count of transparency? As of 2019, only 7 of the 27 sitting Supreme Court Judges had disclosed their assets. If you go by the declarations on the Supreme Court’s website as of 4th July 2022, then only 4 of 32 sitting judges have declared their assets.

Why is transparency a qualifying need for politicians but not for the Supreme Court judges?

Being a tough taskmaster on deadlines – for others

There is a constant ring in Indian mainstream media about the Supreme Court slamming one government department or the other. In 2021, in the midst of the corona crisis, SC slammed the central government and “expressed displeasure over delay in framing guidelines for issuance of death certificates to the families of those who died of COVID-19“. In 2015, in an amusing case, following Justice Joseph Kurien’s personal visit to the Taj Mahal, the SC reviewed construction of a road next to the Taj Mahal and as per this report: “The apex court also expressed displeasure over the quality of road being built near the monument and said there needs to be ‘finesse’ in doing things as people from the world over came to see the Taj.“

The finesse with which Supreme Court works is best summarized on its own statistics page. There are 70,852 matters pending before the Supreme Court. That’s just the supreme court. As of March 2022, there are over 4.7 crore pending cases in the Indian Judicial System that the Supreme Court oversees. Considering the penchant that Supreme Court has for “finesse” you would imagine the courts are working overtime to clear the backlog. Well, the Supreme Court of India takes possibly the most vacation days in the entire world at a staggering 83 vacation days in 2022 (excluding approx. 50 Sundays!). By contrast, the US supreme court has 10 declared vacation days. While there is 2.44 lakh pending rape and child abuse cases pending with the courts of India, the Judges who talk about inordinate delays by others refuse to take a simple decision to restrict their own vacation days till at least the critical criminal case backlog is reduced.

Encouraging dissent – over others

The Supreme Court has acted as a champion for dissent in the country encouraging “dissent as a safety valve of democracy” in a case linked to the Bhima Koregaon violence in 2018. In 2021, the Supreme court ruled that mere criticism of the government would not amount to sedition. Indeed, it is a welcome judgement as no individual or institution should be above board for any criticism.

In contradiction of its own espoused values in the judgements reflected above, Supreme Court tried and convicted Prashant Bhushan for contempt of court in 2021, for among other things a tweet about “the current CJI riding an expensive motorcycle while the court was in ‘lockdown’ “. Irrespective of Bhushan’s credibility or lack thereof, that the supreme court should waste its precious time on conducting a trial and passing a verdict on such trivial criticism beggars the belief that SC stands by its own earlier judgements on tolerating criticism when others were at the receiving end. There have been several other cases where contempt has been used to silence criticism – one of the cases being that of journalist Ajeet Bharti.

It, therefore, comes as no surprise that after the flood of social media criticism that Justices Kant and Pardiwala have received following the tirade of personal opinions they indulged themselves in while hearing a technical matter of clubbing Nupur Sharma’s FIRs, Pardiwala has now called for regulating of Social Media criticism of judges and TMC’s Saket Gokhale has written to the AG to initiate contempt action against OpIndia editor-in-chief Nupur Sharma, who criticised the observations by the Judges.

In summary

Judges are not above the law or constitution. The Supreme Court of India needs to step up to meet the standards they eloquently demand in their verbal observations and written judgements from public officials and private citizens alike. Every day that the Supreme Court refuses to change and reform itself, it stays in Contempt of itself.

Appendix:

List of sitting judges of the Supreme court with familial links in judiciary / government:

U. U. Lalit – Son of U.R. Lalit, former add. Judge of Bombay High Court and Senior Counsel in the Supreme Court

Dhananjaya Y. Chandrachud – Son of  Yeshwant Vishnu Chandrachud, longest service Chief Justice of India. In line to be Chief Justice

Sanjay Kishan Kaul – Family of Dattatreya Kauls, with his brother a Judge in the Delhi High Court

K. M. Joseph – Son of K. K. Mathew, a judge of the Supreme Court of India

Dinesh Maheshwari – Son of prominent Jodhpur advocate Ramesh Chandra Maheshwari

Sanjiv Khanna – Nephew of SC Judge Hans Raj Khanna

Bhushan Ramkrishna Gavai – Son of R.S.Gavai, former MP and Governor

Krishna Murari – Nephew of GN Verma, a prominent lawyer and  president of the high court bar association

Vikram Nath – 4th Generation lawyer in the family

B. V. Nagarathna – Daughter of former Chief Justice of India, E. S. Venkataramiah. In line to be Chief Justice.

P. S. Narasimha – Son of a judge, Kodanda Ramayya 

Sudhanshu Dhulia – Son of K. C. Dhulia who was a judge of the Allahabad High Court