markandey katju
I am deeply distressed by some things happening in the Supreme Court, which has compelled me to write this to you. You should not take it amiss, and should take it is a brotherly and respectful advice of an elder brother, for your good :
(1) Some of you ( like former CJI Chandrachud ) talk too much in Court. You should constantly keep in mind the admonition of former Lord Chancellor of England, Sir Francis Bacon ” A much talking Judge is an ill tuned cymbal ”.
It is mainly the lawyers who should talk in Court, not Judges. Of course you may ask the lawyer for some clarification, but otherwise your job is to sit quietly and listen, and then pass whatever order you think appropriate
I once went to England and visited the British High Court in London during a Court proceeding. There was pin drop silence in Court, the Judge sitting and hearing quietly, and the lawyer arguing in a very low voice. Occasionally, the judge would ask a question to clarify some point, otherwise he was silent.
This is the atmosphere of calm serenity and tranquillity which should be in a Court.
(2) Under the Constitutional scheme, the High Courts have power of supervision and control over the subordinate judiciary ( vide Article 227 ), but there is no similar power in the Supreme Court of supervision and control over the High Courts ( because there is no provision in the Constitution analogous to Article 227 which gives such power to the Supreme Court ).
Despite this, some of you sometimes pass orders which amount to excercising such power of supervision and control over the High Courts, e.g. directing the High Court to decide a case within a specified time, which is unconstitutional.
(3) The Chief Justice of the High Court is the master of the roster of the High Court. So Supreme Court judges have no right to direct that a particular High Court judge must not sit on a criminal bench ( as was done recently regarding Justice Prashant Kumar of the Allahabad High Court ). It is only the Chief Justice of the High Court who can decide which judge of the High Court will sit on which bench
13 Judges of the Allahabad High Court have protested against the Supreme Court bench order
(4) The Supreme Court itself has severely criticised passing strong strictures by the High Court against judges of lower courts, particularly when this is done without giving a hearing to the judge concerned. But Justices Pardiwala and Mahadevan, who passed the order, have committed precisely this error
(5) A retired senior Judge of the Supreme Court told me today that he asked Justice Mahadevan, who was the junior judge on the bench, why was he a party to such a totally unconstitutional order ? Justice Mahadevan said that Justice Pardiwala dictated the order without consulting him.
If this account is true, it must be said that it was totally improper of Justice Pardiwala to dictate the order without consulting his brother judge on the bench, and it was also totally improper for Justice Mahadevan to have acquiesced in this order.
All judges on a bench, even the Chief Justice, are equal when sitting on the judicial side. But there is often a tendency of senior judges on a bench to pass orders without consulting their junior colleagues or by ignoring him. This is wholly improper. The purpose of a bench is that 2 heads are better than 1. But if the senior judge tries to dominate over benches ignoring his junior colleague, what purpose is there of a bench ? The junior judge is not a dummy, whose only job is to sign orders passed by his senior colleague. He is an equal member of the bench.
Hence Justice Mahadevan should have told Justice Pardiwala that he did not agree with the order dictated by his senior colleague, and he should have dictated his separate order. Failure to do so was a serious lapse on the part of Justice Mahadevan.
With regards
Justice Markandey Katju
Former Judge of the Indian Supreme Court
8.8.2025
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