Question: DR MATHEW JOSEPH, USA

How do you see the great issue raised recently by the four senior judges of the Supreme Court? Could not the problem have been solved internally as some of retired Judges of the Supreme Court claim rather than be dragged into the media? What do you think?

Answer: DR GEORGE THERUKAATTIL MCBS

The development of an internal rift among the senior judges and the Chief Justice of India [CJI] now has moved towards a full-blown crisis.The historic press conference held by the four senior-most judges of the Supreme Court, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, has exposed an unprecedented level of dissension in the top ranks of the judiciary. Regardless of who is right in the current dispute over the administrative functioning of the CJI, the reverberations of what took place will not easily subside and will be felt for a long time to come.

There was ample evidence over the last few months that the highest court was in a state of turmoil. Many things that are less than desirable happened there with the ruling Government interfering in the judicial functioning and administration. Common people come to know about this extensively from both the print and electronic media. The four judges have now confirmed this. And as I write this, the Central Government has interfered again with the independence of judiciary by sending back the recommendation of SC Collegium for elevating Uttarakhand Chief Justice K.M. Joseph who had quashed the imposition of President’s Rule in the State against the wishes of the ruling Central Government.The reason is unclear as of now. But whatever it may be, people see it as one more instance of Centre’s interference on the independence of the judiciary to bring it also under its foothold to execute its hidden ‘Hindutva’ agenda. The perception that the judiciary is apolitical seems to have been destroyed.

As I see this issue, the four judges must have exhausted all possible remedies and must have had compelling reasons before they went to public. I guess they might have come under such stress that forced them to address the Press. They had placed on record a letter written by them to the CJI, Dipak Misra, over two months prior to the press conference revealing their anguish and agony at some of the SC’s judicial orders, which had adversely affected the overall functioning of the justice delivery system and the independence of the Supreme Court. Their letter acknowledged the CJI’s authority, as the master of the roster to decide which Bench should decide which case. But they wrote that this did not make him a “superior authority.” “The Chief Justice is only the first among equals — nothing more or nothing less.” Besides, they wrote in the letter that the convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/Benches of the Court – a convention devised for a disciplined and efficient transaction of business of the Court – had been overturned by the CJI. Further, the CJI had used his authority of allocation autocratically defying all norms of equity and justice and in disregard for principles of neutrality, impartiality and transparency. Undisciplined exercise of this authority by the CJI can lead to a complete subversion of secularism and democracy of our country.

Though the four judges did not reveal too many details in the press conference, it is clear that their grievances are rooted in their perception that the CJI Deepak Misra was misusing his administrative powers to assign cases “selectively,” disregarding conventions on allocation of judicial work. While accepting the rule that the CJI alone can decide the composition of Benches and allot judicial work, the four Judges alleged that the CJI was departing from set conventions that it would leave “unpleasant and undesirable consequences,” ultimately casting a doubt on the integrity of the Institution itself. Further, they accused that cases with far-reaching consequences for the Nation and the Judicial Institution were being assigned by the CJI to junior judges and Benches of his preference, a suggestion that is being read by some as an ominous reference to an unknown external hand.

Logically, as I see, all this is an internal matter of the judiciary, one that is best settled through deliberations in a full court meeting of all the Supreme Court judges themselves. But the issue has already brought anerosion in the judicial independence of the Court. It has triggered doubts about the independence of the Institution, tarnished the image and reputation of the judiciary and did serious damage to the credibility of the SC. The common man, who had absolute faith in the judiciary and in the impartiality of judges, is now let to suspect that the Court decisions may not be purely based on merit. People now come to suspect even the highest level of judiciary in India may not be immune to partiality, discrimination and pliability. The confidence of the people in the judiciary has been shaken. From now on, every common man looks at all Court orders with suspicion and watches them hawk-eyed, especially when they are delivering judgments in sensitive cases involving tall political leaders. Added to this, the issue had also a great debilitating impact on the administrative functioning of the office of the CJI. Ultimately, the most important and disastrous consequence of the issue is the serious threat it poses to democracy. Democracy and its institutions are in great danger; unless the judicial institution’s independence, accountability and transparency are preserved, democracy cannot survive.

The germ that led to the out-break of the current conflict could be the controversial Prasad Education Trust case, in which the petitioners alleged that some individuals were plotting to influence the Supreme Court. In an unusual order, a Division Bench headed by Justice Chelameswar went ahead to delineate the composition of the Bench to hear the case, in which charges of judicial corruption were made, coupled with hints that there would be a conflict of interest if Justice Misra were to hear it. Eventually, a five-judge Bench headed by Justice Misra overturned the order and asserted that the CJI was indeed the master of the roster and that he alone could assign cases and decide on the composition of Benches. While there is no questioning who has the power to determine the roster, what the four judges are essentially questioning is how this power has been exercised. Judicial work is primarily allocated based on a roster, and individual cases are allotted to Benches based on the category under which they fall. Once the roster is fixed, the CJI should ordinarily see that it is duly followed. Exceptions must be rare, and that too only for compelling reasons. While it is not clear in how many cases such exceptions were made, the four judges seem to have had an issue over the petition that sought an inquiry into the death of special CBI judge B.H. Loya in 2014 being posted before a particular Bench. The deceased judge was hearing the‘fake encounter’ case of Sohrabuddin, alleged to have been a criminal from Gujarat, where BJP president Amit Shah was the prime accused before being cleared of all charges. The magazine Caravan reports that Amit Shah had tried to give crores of Rupees as bribe to B. H. Loya.

Politically, the most sensitive issue, as I see it, might have been the handling of the PIL plea-seeking an independent probe into the mysterious death of CBI judge Loya been assigned by CJI to preferred judges and given a quiet burial. Though the case has been reopened now with another Bench in the SC and hearing going on, the Loya PILs has led to a tide of insinuations and questions which require a fresh probe.

Whether indeed there was arbitrariness, and whether such arbitrariness, if any, was purely whimsical or motivated in the allotment of the cases, it is impossible for members of the public to ascertain. But if the four senior-most judges, despite their internal meetings with the CJI, resorted to the extreme step of appealing to the public, their grievances are entitled to a certain degree of credence. Assuming such credence, the question that any well-wisher of the judiciary, whether inside or outside it, must ask is what institutional design facilitated such seemingly arbitrary decision-making.

Equally critical is the fear of politicization of judiciary, which is misdirected, being based on a naïve view that overt parliamentary law is the sole method of interference with the judiciary. What it fails to countenance is that more nefarious methods of political interference in the judiciary exist, and have always done so. Moreover, such methods thrive in opacity, subjectivity and a lack of norms. It is this darkness that the press conference of the four Judges has cast a light on. To shut the light out and resolve the matter in darkness through an internal resolution would be exactly contrary to what the situation demands.What is needed now is more accountability and transparency in the judicial system. Rather than going for an impeachment of the CJI, which may not succeed in the present set up, it is better to pass a Supreme Court Act by the Parliament after
an open public discussion
involving all stakeholders — civil society, the judiciary, the Bar and members of all shades of political opinion.

The Attorney General of India as a constitutional authority could have squarely confronted the serious issues brought by the four judges and ensured the faith of the people in the independence and impartiality of judges restored. As constitutional authority, it was his constitutional duty to squarely to attend to the vital issues raised by the four judges, in discussion with the CJI and all other judges of the SC to find a solution that will restore the dignity of the SC. Unfortunately he tried to hide the issues and seemed to act as an agent of the Government.

All said and done, according to me, it was good in one way that the four judges made their historic press conference. There should be a frank public conversation on the judiciary — an internal patch-up was not enough. Judiciary needs to be democratized to save democracy in the country. An undemocratic judiciary that does not include accountability, transparency, and representation for all sections will not be able to protect democracy effectively. The four judges have done to us all a great service by turning the spotlight on the opaque functioning of the SC. Generations of Indians will ever be grateful to them for taking that unpleasant but extraordinary stand and going to the Press [Media], the fourth pillar of democracy, to voice their concerns.It would certainly strengthen the secular and democratic framework of our country. The four judges should be saluted for their courage and determination.

The Constitution protects the independence of the judiciary, but the independence and accountability are two sides of the same coin. Over the years the SC had built walls around itself, purposely to prevent political interference in the functioning of the judiciary. While there is a great desire to be independent and avoidance of political partisanship of any kind what-so-ever, this has not been the case in actual reality as we see now with the four judges divulging misgivings about the functioning of the Court and the allocation of judicial work selectively by the CJI to achieve a result which was to the present Central Government’s liking. This has caused a massive stake for citizens in the justice system and its functioning.

On May 7, 1997, the SC adopted a charter called the Restatement of Values of Judicial Life and in 2010 Judicial Standards and Accountability Bill was introduced in the parliament. This was to serve as internal mechanism for self-regulation and as a guide to be observed by judges and was considered essential for an independent, strong and respected judiciary. It is time to not only enact a Supreme Court Act but also enact the pending Judicial Standards and Accountability Bill, 2010.

In conclusion, the recent quagmire in the Apex Judiciary and the consequent great threat and danger they pose to the nation, must be viewed with serious concern. Instead of accusing the four judges of airing dissent, one must delve deep into the issue and focus on the festering problems in the judiciary. Given the credibility that the judiciary enjoys among the public as the most trusted Institution in the country, it is time for all judges to resolve their differences. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with all Honourable Judges of SC. The CJI is the first among equals and he is the captain who has to carry the whole team with him, while enjoying their goodwill and support.

As I write this, the CJI, Dipak Misra, has put in place a new roster for allocation of cases, one of the issues that forced the four senior-most SC judges to publicly question his leadership. But the new roster again shows the high-handedness of CJI in asserting his supremacy to the exclusion of the senior judges of the Court. It raises more questions than puts to rest the issue of a fair and transparent roster for allocation of cases in the SC,which must be done in keeping with principles and procedures that have been accepted globally as necessary for transparency, fairness and accountability. The new allocation aggregates all important and politically sensitive cases to the CJI himself. This will have a long-term bearing on the state of our secularism and democracy.Let us hope that all the other issues raised by the four judges will be sorted out amicably by all the judges of the SC including the CJI through a prism of objectivity and fairness. This only will yield more authority to our SC as the supreme custodian of people’s rights.