In a move that shook the ethos and established traditions of one of the crucial three pillars of the democratic apparatus, the Indian Judiciary, four senior-most judges of the Supreme Court took to the public to address grievances that faced the institution.
After the letter that honourable Justice J Chelameswar, Justice Rajan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph collectively wrote to Chief Justice of India Dipak Misra went unaddressed, the top judges relied on the fourth pillar to bring forth issues that “adversely affected the overall functioning of the justice delivery system.”
The judges said that the CJI is only first among equal, nothing more or nothing less. They expressed concern over CJI’s way of assigning cases to the benches and deciding the composition of the same. Without going specific, the letter that the judges produced, read “having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment.”
A case in point is the medical admission scam, where a bench headed by Justice Chelameswar referred the case to a constitutional bench but the CJI asserted his right as the master of the roster and put together a five-judge bench reversing Justice Chelameswar’s order.
Another issue that the judges noted in the letter and put before the media was over the Memorandum of Procedure (MoP) of appointment of the judges of the Supreme Court and High Courts. In 2015, the Supreme Court had declared unconstitutional the National Judicial Appointment Commission (NJAC) that the parliament had constituted, saying that it violated the independence of the judiciary.
Later, in March 2017, the top court had sent a reformed MoP which the Center had neither objected to nor approved. In October, however, another bench of the Supreme Court commented that the issue of the MoP should not be delayed any further.
The letter that the judges addressed to CJI pointed, “When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association and Anr. Vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.”
In the press briefing, Justice Gogoi affirmed to a query by a journalist that sought if Judge Loya’s death was a matter of discussion in the judges’ meeting with CJI yesterday. CBI judge Brijgopal Harkishan Loya was hearing a case regarding the encounter of Sohrabuddin Sheikh but died during the duration the case was in court. There were speculations if Justice Loya’s death was natural and the Bombay High Court seized the petition. But the Supreme Court admitted to a similar petition filed before it despite objections from lawyers.
While CJI has not reacted to the historical move of the top judges, former Chief Justice R M Lodha has remarked the CJI must show ‘statesmanship’.
The judges’ move has also elicited different responses from across the political fora.
The center has remarked that it will not intervene, though Attorney General KK Venugopal remarked, Supreme Court judges’ press conference “could have been avoided.”
Congress President Rahul Gandhi said that an independent probe should be initiated in Judge Loya’s death.
BJP spokesperson Sambit Patra countered the Congress saying, “No politics should be played. Surprised and pained that Congress which has been rejected number of times by people in elections is trying to gain political mileage, it has exposed itself.”
The Supreme Court Bar Association has said that instead of addressing the media, the judges’ could have met the Association. The SC Bar Association is to address the media over senior judges’ allegations today.
Though questions about the righteousness of the unprecedented move of the top judges to address the media prevail, the event brings forth to light how ill-quipped our judicial system is to deal with its own grievances. If instead of addressing the media, should the judges have approached the President is also being debated.
Regardless, the grave situation has presented the need for a system within the judiciary that checks on the absolute authority of office of CJI. It has also brought an opportune moment for the center to implement the NJAC.
While the debate is hot, one can guided by what J. William Fulbright said, “In a democracy, dissent is an act of faith.”