By Harihar Swarup
This is not for the first time that Supreme Court judges have aired their grievances publicly, but the way four senior most judges of the apex court revolted against the functioning of the Chief Justice is unprecedented.
Justice JS Verma spoke in late nineties on things ailing the judiciary. But that was in general terms. Some time back, Justice C-S Karnan, a sitting High Court judge, went public even to the extent of sentencing Supreme Court judges to jail for what he viewed as violating the SC/ST (Prevention of) Atrocities Act. Justice Kehar was the Chief Justice. Justice Karnan acted alone. He ended up being the first sitting judge to be held guilty of contempt and jailed.
The most contentious time was in the 1970s, when the idea of committed judiciary that Indira Gandhi and her team spoke of, was almost secured. The appointment of Justice AN Ray as Chief Justice in April 1973, superseding three senior judges, was meant to be an all time low in how judiciary was sought to be managed.
Last week’s unprecedented press conference by four senior most Supreme Court judges—Jasti Chelameswar, Rajan Gogai, Madan B Lokur and Kurian Joseph—against the Chief Justice exposed the deep cracks in this constitutional pillar.
The present crisis involves mainly the contention on how judicial business should be conducted. The extraordinary movement of four justices in making public a letter addressed to the CJI in November 2017, and assorted observations at the press conference, were unusual judicial happenings. At that conference, Justice Chelameswar said that “less than desirable things have happened” and the protesting justices vainly tried to persuade the CJI to take “remedial measures”.
The letter released at the press conference spoke of the ways, in which “the overall functioning of justice delivery system”, worked, the “independence of the high courts”, and how the functioning of the office of the CJI has been “adversely affected”.
A situation where four senior-most justices went public to express their discontent with the present CJI’s exercise of authority to constitute Benches raises grave constitutional questions. Undoubtedly, the chief justices, whether of high courts or the Supreme Court, have the power to order roaster. The question is whether that power is coupled with a constitutional duty to follow certain conventions. Obviously, there are few: Chief justices have a primary duty of accountability to Brother Justices, the Bar, and a general obligation through the Bar to the litigating public and people at large.
But when a letter by four senior justices has been ignored for about two months, is going public with a copy of that letter and holding even a press conference unjustified? On this question opinion varied. Some have lauded this step as heroic while the others regard this as “sheer trade union tactics”, and some even say the step was extremely unfortunate but now some institutional solidarity should pave the path ahead.
The immediate provocation, however, is the allegedly arbitrary use of the administrative powers of the CJI to predetermine the outcome of politically sensitive cases. The present impasse arises amidst a sense of creeping authoritarianism, characterized by a callous disregard for constitutionalism.
Week-long efforts by future CJIs and other judges have failed to bridge the chasm between present CJI Deepak Misra and four senior-most judges of the Supreme court, The CJI did not agree with the “grievances” they had articulated at the press conferences.
Led by Justice Chelameswar, the “rebels” who include Justice Rajan Gogoi, Madan B Lokur, and Kurian Joseph, met the CJI for this second time this week on Thursday to contain the damage the institution has suffered after they publicly vented their grievances against what they called serious irregularities on the administrative side of the apex court, especially assigning of “politically sensitive” cases to “select benches” headed by “junior judges”.
The 10-minute meeting saw the four telling the CJI to publicly acknowledge their grievances and make a statement that he would look into the grievances and set up a committee of judges to devise a mechanism for transparency in allocation of cases to benches.
On his part the CJI reiterated his earlier statement that he would look into their grievances but remained disinclined to hold a press conference or publicly acknowledge their grouse. After the meeting the CJI and other judges commenced their scheduled judicial business and heard listed cases.
However, in the afternoon, Justice Chelameswar left Delhi, ending further meeting between the CJI and four judges during the week-end. The outcome of the meeting was clear that the stalemate is not going to be over. CJI Dipak Misra is in no mood to call the media to publicly acknowledge the grievances aired by the four senior most judges as this would amount to admitting that he was in the wrong. The CJI believes he strictly followed the beaten track in assigning cases and adhered to a recent five-judge Constitution bench ruling that the CJI was the master of roster. (IPA Service)