What began as faint murmuring in court corridors has turned into a loud clamor in the national media. An institution which has long prided itself on its reputation for secrecy and delicacy, while demanding accountability and transparency from other branches of government, appears to be struggling to take a long, hard look at itself.
Something is rotting in the state of the judiciary. After an unusually good run in the last few months, with judgments on Triple Talaq, the Right to Privacy, and the upcoming hearing on section 377, the Indian courts have shown us that it is now time for some introspection.
In the January 12 press conference, it emerged that the four judges were unhappy with the manner in which the CJI was assigning cases. They had written to him a few months prior, but to no avail. It appears that the breaking point was reached when the CJI assigned a case disregarding specific concern expressed by the four judges in a meeting on January 12 itself.
In an unprecedented move, the four senior-most judges of the Supreme Court broke ranks and publicly questioned the leadership of Chief Justice of India Dipak Misra.
The four judges, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, alleged that the chief justice was not following established precedents in allocation of cases among the judges. Consequently, they argued, this was “adversely” affecting the justice delivery system.
After submitting a seven-page letter of protest to the chief justice on Friday morning, the judges went public with their grievances and held a press conference at the residence of justice Chelameswar.
It was an argument early in the morning around 10 am which convinced the four most senior judges in the Supreme Court to go to the People’s Court.
All four had met Chief Justice of India, Dipak Misra with a question about the assignment of two PILs on Special CBI Judge BH Loya’s death to court No.10, which is headed by Justice Arun Mishra.
On Friday morning, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph confronted the CJI as to why such an important matter relating to death of a judicial officer was sent to court no. 10, bypassing eight senior judges and benches.
They questioned whether it would reflect badly on the system as well as the competence of the other judges when the CJI sends an “important case” to a “handpicked” bench.
According to the sources, Justice Misra replied that the case has already been assigned by him to court no.10 in administrative authority and that he saw nothing wrong with his administrative order.
Upset, the four judges expressed their strong objection to the CJI, saying all this would set a wrong precedent and that the institution will suffer. The CJI, however, retorted that he was acting as per the established principles of the allocation of cases.
The four judges also recalled that they had been making requests to the CJI for months now to make the allocation of cases more suitable and proper, apart from making the system more transparent but again to no avail.
However, the CJI referred to a Constitution Bench judgment, which had made it clear that he, as the “master of the roster”, could assign cases to “appropriate” benches as per his discretion. Justice Misra refused to accede to their request.
As their request was unheeded, the four judges had a brief discussion among themselves and then a decision was taken to go public with their views.
Sources said this was the last straw, and even the Justice Gogoi, who is the next in line to become the Chief Justice of India after Justice Misra demits office on October 3 and had been reluctant so far to address the media, as per the sources, decided to join the ranks.
During a press conference on Friday, the four judges had flagged certain problems, including the assigning of cases in the apex court, and said there were certain issues afflicting the country’s highest court.
Responding to a question on whether their protests had anything to do with allocation of Loya’s case, justice Gogoi said “yes”.
Besides being an unprecedented step, the revolt by the four judges has the potential to snowball into a larger crisis, especially since national political parties are poised to take sides on the issue.
Explaining their unprecedented action, Chelameswar said the judges were driven by the fear that failure to communicate their concerns could jeopardize the institution of the Supreme Court and thereby of democracy.
The letter cited the irregular manner of assigning of cases by Misra as a particular matter of concern. “There have been instances where a case having far-reaching consequences for the nation and the institution have been assigned by the chief justice selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all costs,” it said.
The judges also criticized the delay in finalizing the memorandum of procedure (MOP) on which detailed discussions were held by the collegium (comprising the top five judges of the Supreme Court) and submitted by the then chief justice to the government in March 2017.
The cases behind the controversy:
In the crisis involving four Supreme Court judges and CJI Dipak Misra, the immediate flashpoint, according to one of the dissenting judges, was over who should hear a PIL on the death of special CBI judge BH Loya. Then, there were the medical college bribery case and the NJAC dispute.
The unprecedented press conference by four judges on Friday exposing a rift within the Supreme Court collegium came just a day after it recommended fresh appointments of judges to the Centre. Justices Jasti Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph criticized an alleged lack of transparency in the selection of judges to try cases, calling it a cause of “serious concern”. The triggers for the unprecedented step lie in key cases in the recent past.
Here is a recap of the flashpoints:
Justice Loya PIL
The immediate flashpoint, according to one of the dissenting judges, was over who should hear pleas regarding the death of special CBI judge BH Loya. “This morning we went to the CJI with a specific request but unfortunately we were denied,” said Justice Jasti Chelameswar, without specifying the request. “So we were left with no choice but to take it to the nation,” he said. Asked whether the issue raised with the Chief Justice was about Loya, Justice Gogoi said, “Yes”, according to an ANI report.
Medical college bribery case, November 10, 2017
A five-judge constitution bench headed by Chief Justice of India Dipak Misra in November ruled that it is the prerogative of the Chief Justice to decide which bench should hear a particular case. The bench effectively overturned the order of a two-judge bench comprising Justice Chelameswar and Justice S Abdul Naseer a day earlier, which had ordered the setting up of a bench of top five judges in a matter alleging bribing of judges by medical colleges to obtain favorable orders.
Memorandum of Procedure, October 2017
A petition questioning the delay in finalizing the Memorandum of Procedure (MoP) for the appointment of judges to the higher judiciary was dealt by a bench of justices AK Goel and UU Lalit in October last year. The bench had issued a notice to the attorney general on the issue. However, the matter was listed in front of a special bench of three judges headed by the CJI on November 8, which recalled the October 27 order of the two-judge bench. Such a matter, the four judges said in their letter written to the CJI two months ago, should have either been dealt by a constitution bench or taken up at the chief justice’s conference and the full court comprising all judges of the SC. The letter said the development must be viewed with “serious concern”.
In addition, legal experts say the four judges may have also had an issue with the Constitution Bench set up to hear the challenge to Aadhaar and the Rakesh Asthana case.
Rakesh Asthana’s appointment, November 2017
In this case, the appointment of Asthana as the special director of the Central Bureau of Investigation was challenged by activist group Common Cause before the Supreme Court. After a few changes in the bench hearing it, the case was eventually heard by a bench comprising Justice RK Agrawal and Justice AM Sapre and headed by the former (the 8th most senior judge in the apex court). The bench dismissed the challenge.
In the Aadhaar case, a five-judge constitution bench of the Supreme Court led by CJI Misra will from begin hearing petitions challenging the legality of the 12-digit biometric unique identification number from January 17.
Besides the CJI, the bench comprises of justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. No senior judge is a part of the bench. The second senior-most judge on the bench is Justice Sikri who ranks sixth in seniority. Besides, the ‘original’ bench on Aadhaar matters was headed by Justice J Chelameswar and it was this bench that had referred the petitions for hearing before a five-judge bench, which wanted that Aadhaar be tested against the right to privacy, a fundamental right. The four senior judges may have also had an issue with this, the experts added.
After such turmoil, people all around the country are questioning the above move and presenting forth the different views. Some have molded the above press conference again into a political battle ground whereas many others have started to worry about the future of the judiciary and stressing on how far it could have been avoided or should be avoided in the future.
The most circulated question among the portals and people is that “Should the four SC judges have dissented publicly?”
With the large population in country and different mindset people answered in affirmatives and some were totally against the idea and where some other still couldn’t understand the urgency of the press conference.
For those who favored the move gave it a name “Last Resort” and stated “The four judges were absolutely right in informing the public of the dangers that lie ahead. Democracy is enshrined in the Constitution. It is their duty as Supreme Court judges to protect the Constitution. If there is no democracy, there is no constitution and no constitutional democracy.”
“It is not as if the four judges did not try for months to convince the CJI that he must not resort to selectivity in the assignment of cases, but it bore no results. Even on the day of the press conference, they met the CJI (in regard to the listing of cases) but could not convince him. Unless this lack of impartiality in the administration of justice is enquired into, and unless rules are framed on a rational basis and a system is devised for an impartial allocation of cases, the damaged faith of the people of India in the impartiality of the Supreme Court will not be fully restored.”
Now those who disapproved of the move as a member of the same family stated that “A strong and united judiciary is the sine qua non for a strong and vibrant democracy. If the judiciary of a country is divided and polarized, it will have a direct effect on the very survival of democracy in that country.”
When the four senior judges of the Supreme Court addressed a press conference, is something which could and should have been avoided. When any judge has a difference of opinion on any professional matter with his brother colleagues, the best way to iron out these differences is to have an amicable discussion on the same. If this is not possible, then a discussion must be held with the help of other judges. However, it is not proper to go public and talk about these differences, whatever they may be. The stability of a nation depends on two factors: the common man’s absolute faith in the currency of the nation and in the judiciary. In a democracy, the judiciary is one of the most important pillars and it is the last ray of hope for the common man. He pays utmost respect to the judiciary. If his faith in the judiciary is hampered in any manner, the result is a huge loss to the country and to the judiciary.
Today, we are seeing how political parties are settling scores, by accusing each other of interference in the highest judiciary. They are scoring brownie points based on that press conference, which is unfortunate. Congress president Rahul Gandhi backed the four judges.
“Points raised by the four judges are extremely important. They said there is a threat to democracy and that needs to be looked into carefully. SC judges spoke about justice Loya and that too needs to be looked at from the highest levels of judiciary.”
The move found favor with members of the bar. Senior advocate Prashant Bhushan said on Twitter: “Truly unprecedented! Kudos to the four senior most judges of SC who addressed a press conference today to apprise the people about the extraordinary abuse of ‘master of roster’ powers by CJI in selectively assigning politically sensitive cases to handpicked junior judges for desired outcome.”
Arguing similarly, senior advocate and Rajya Sabha Congress MP Abhishek Manu Singhvi said, “If true, these are extremely serious allegations regarding change of benches, and if true they also reflect very poorly on certain matters of great significance in the corridors of power. I hope that they are addressed immediately because otherwise this is an irreparable assault on possibly the most important pillar of our democracy.”
West Bengal chief minister Mamata Banerjee voices “anguish” over the happenings in the Supreme Court.
“We are deeply anguished with the developments today about the Supreme Court. What we are getting from the statement of the four senior Hon’ble Judges of Supreme Court about the affairs of the court makes us really sad as citizens,” Banerjee, also Trinamool Congress chief, said in a statement.
“Judiciary and the media are the pillars of democracy. Extreme interference of central government with judiciary is dangerous for democracy,” she said.
“The full facts are not out in the public domain and may never be because its complicated.”
Events have not fully unfolded. The four judges and their press conference have been the subject matter of much media criticism. Unwarranted aspersions have been cast in television debates and social media on the motives of the judges. The press conference has had the effect of bringing into public debate the conduct of various judges, a course of action which the Constitution-makers wanted to avoid. Article 121 prohibits the legislature from discussing the official conduct of any judge of a constitutional court, except while debating an impeachment motion.
The judgment of history may or may not be written 20 years from now. For the moment, it is quite clear that there are no clear answers to the question of whether the four judges ought to have resorted to a press conference. The full facts are not out in the public domain, and may never be. The judges would be justified if their perception was of a clear and present danger to the Republic and to the independence of the judiciary.