It is shocking to hear claims to absolute, unaccountable power in an officer of the judiciary, especially the presiding judge of the apex court. We need, next, to ponder over the origins of the decline, the course it took and the finale it threatens to reach unless it is arrested now. As Lord Bingham remarked, “the courts tend to be most assertive, active and creative when political organs of the state are least effective” ( The Daily Telegraph, April 17, 2001).
In Britain there was an uproar in the House of Lords led by the Lord Chief Justice, Lord Hewart, over the government’s Bill to create a new office of Vice President of the Court of Appeal. The Janata Party government, a house divided, was weak.
IS it a mere coincidence that on one and the same day, Thursday, April 12, 2018, one of the mostly highly respected judges of the Supreme Court and one of the acknowledged leaders of the Bar spoke in anguish and alarm about the state of the Supreme Court of India in terms that should alert the nation?
Justice Kurian Joseph said that the “very life and existence of the institution is under threat”. If the judiciary is in such deep crisis as to warrant the language that they used, it is due almost entirely to the obdurate stand of one man, the Chief Justice of India, Justice Dipak Misra.
“The attitude of judges in regard to contacts with the public seems also to have completely altered. Hence these cases have to be dealt with differently from the usual cases which come up before this Court. Every word uttered on either side of the Bar should be weighed before it is used.
It has become frequent for judges, newly appointed to the bench, to accept invitations to entertainment not only from representative associations but from individual members of the Bar and even from private citizens.” It prompted this writer to write an article on “Disturbing Trends in the Judiciary” which was published on September 22, 1963, in The Sunday Standard, the Sunday edition of Indian Express. Around a score of colleagues at the Bar wrote to the Standard in support on October 14, 1963; two of them became judges of the High Court. “I, however, feel that the questions involved are too large and complex for the shoulders of a single judge to bear.
We have no arbitrary power to give, because arbitrary power is the thing which neither any man can hold nor any man can give away.
“Those who give and those who receive arbitrary power are alike criminal, and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world.
Judges are guided and governed by the eternal laws of justice, to which we are all subject. Chandrachud duly provided support to the State’s cause.
We may bite our chins if we will, but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God.” This was said 230 years ago apropos an officer of the executive. We need now urgently to resolve the immediate crisis, which includes Prime Minister Narendra Modi and Law Minister Ravi Shankar Prasad’s refusal to appoint as judges of the Supreme Court, judges of High Court duly recommended by the collegium. ( ADM Jabalpur vs Shivakant Shukla  2 SCC 521.) Once the Emergency was over the Supreme Court became hyperactive.