The Dissenting Four do have a Point
To begin with, what has happened on January 12, 2018 is completely unprecedented in the history of Supreme Court of independent India! Never before have the Hon’ble Judges of the Supreme Court ventilated their grievances against the Chief Justice so openly and right in front of the media! Transcending judicial protocol which prohibits the sitting Judges from interacting with the media, all these 4 Justices accused Chief Justice Dipak Misra of assigning cases of “far-reaching consequences to the nation” to junior hand-picked Judges against the time-tested convention, practice and tradition of the court! How can this be ever justified?
Truly speaking, this is certainly a very serious charge and the CJI Dipak Misra would also now certainly deliberate on it and must be more careful from now onwards! Why can’t well defined rules be made in this direction so that there is no confusion of any sort regarding picking of Judges for hearing sensitive cases? It can certainly be done if judiciary resolves firmly to do so!
It cannot be denied that all these 4 Judges – Justices Ranjan Gogoi who is next in line to replace Dipak Misra who is the present Chief Justice of India, Jasti Chelameswar who is senior to Gogoi but will retire early on June 22, 2018, Madan B Lokur and Kurian Joseph who make the current Supreme Court collegium are men of strong character and carry great reputation with them of always
sticking to prescribed norms! Not just this, they are seniormost Judges of the Supreme Court and they have to be accorded due importance by the CJI because CJI himself is “first among equals” but not superior otherwise! I have never heard anything against any of these 4 Judges which may raise a question mark on their impeccable integrity! So what they say has to be taken most seriously.
It must be brought out here that the seven-page letter which was addressed to the CJI and circulated at the press meet minced no words in stating that certain Supreme Court Judges arrogate to themselves the “authority to deal with and pronounce upon” cases which ought to be heard by other appropriate Benches. The letter is of October 2017 origin which implies it was written about three months back. Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measures but their efforts failed.
To be sure, Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measure but their efforts failed. With a heavy heart, the Judges said that, “With the independence of the judiciary and the future of democracy at stake, they had no other choice but communicate to the nation to please take care of this institution.” Justice Chelameswar also sought to make it clear that, “They decided to act now because they did not want any wise men to say 20 years later that Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph sold their souls and did not take care of the interests of this illustrious institution.”
It cannot be lightly dismissed that Justice Ranjan Gogoi has highly risked his chances of becoming the next Chief Justice by coming out in the open to air his differences with Chief Justice Dipak Misra! The other Judges also have taken a great risk by daring to come out in the open. They have acted as per their conscience and it needs real great guts to do so! How many of Judges in the Supreme Court have acted like them in the past? The answer is a big “none”!
It must be pointed out here that Justice Ranjan Gogoi is known to have never hesitated to take even the higher judiciary into account whenever he felt it necessary to do so. As the Chief Justice of the Punjab and Haryana High Court, his last position before he was elevated to the top court in 2012, Justice Gogoi had taken up with the then CJI SH Kapadia the way a fellow High Court Judge had committed glaring irregularities and illegalities, both procedural and substantive which were evident in the judgment delivered by the High Court Judge. Justice Gogoi had stated that, “The matter in dispute was decided without even framing substantial question of law. No formal notices were issued to the respondent – instead those were issued only to the counsel for the respondent in a case where high stakes were involved.” The Apex Court had to then transfer the High Court Judge citing “public interest”.
Going forward, Justice Chelameswar also lamented that, “The administration of the Supreme Court is not in order. Many things undesirable have happened in the last few months. As seniormost judges of the court and of this country, we hold a responsibility to the institution and to the nation.” He also quipped that, “The convention of the court demands that important cases of public interest or sensitive matters should be first heard by the Chief Justice of India. If the CJI is not willing for some reason to hear the case, then it should be assigned to the next senior-most judge in the Supreme Court. Instead of that, such cases have been assigned to certain Benches and eventually given a quiet burial.” This is a very serious charge!
Justice Chelameswar went on to further add that, “Unless the institution is preserved and allowed to maintain its dignity, democracy will not survive. The hallmark of a good democracy are independent and impartial judges.” Who can dispute or deny this? Why can’t their invaluable suggestions be implemented after taking into board the CJI Dipak Misra along with other Judges of the Supreme Court?
Why drag on with the old deadwood? Why can’t fresh changes be made in the functioning of the highest court of India? Why do we forget that even judges are not infallible?
Justice Chelameswar also pulled back no punches in recounting that the trigger for the press conference was a meeting they held with the Chief Justice on the morning of January 12 regarding the assignment of a petition, seeking an independent probe into the mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin encounter case to a particular Bench!
Be it noted, they had expressed their reservations to the CJI about the assignation of the Loya case. But the CJI refused to budge. They had then informed him about their intention to go public. Though Justice Chelameswar did not name the Loya petition, Justice Gogoi, who is scheduled to take over as Chief Justice of India after Dipak Misra retires on October 2 in 2018, spoke up to clear the air by saying that the petition is indeed regarding Judge Loya’s death. He said: “Yes, yes. It was the Loya case.”
Justice Gogoi further added that, “It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what.” The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra who is a very junior Judge in Supreme Court heard the Loya petition. One has to concede here that a Bench led by Justice Arun Mishra termed the alleged mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin Sheikh encounter case as a “serious matter” and asked the Maharashtra government to respond by January 15.
It also said the case should be heard bi-parte rather than ex-parte while asking the Maharashtra government to file the Judge’s autopsy report. It decided to hear the case despite protests from the Bombay Lawyers Association, represented by senior advocate Dushyant Dave that it has already field an identical case and it is pending before the Bombay High Court. The Apex Court is hearing petitions filed by Maharashtra based journalist BR Lone for a probe into Loya’s death on December 1, 2014.
Another petition has also been filed by Congress leader Tehseen Poonawala on the same issue. Loya had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter. The issue embroiled into a major spotlight in November 2017 after media reports quoting his sister fuelled suspicions about the circumstances surrounding his death and its link to the Sohrabuddin case. Poonawala in his lea said the circumstances of the death of the Judge were “questionable, mysterious and contradicting”. Even Caravan magazine had covered it in detail some time back.
It must be revealed here that the 4 Judges said the letter written in October 2017 did not mend matters. Their efforts to convince the Chief Justice to take corrective measures had failed thus forcing them to go public. The letter written by the 4 Judges reveals their utter anguish at the recent judicial orders and an erosion in the judicial independence of the court. The letter said the Chief Justice’s authority, as the master of the roster to decide which Bench should decide which case, did not make him a “superior authority”.
Furthermore, the letter also stated that, “The Chief Justice is only the first among equals – nothing more or nothing less”. Yet, they said, “there have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of this court selectively to the Benches of their preference without any rational basis for such assignment.”
Truth be told, the letter which the Supreme Court’s four seniormost Judges have made public has emphasized the row between the Apex Court and the government over finalizing the Memorandum of Procedure (MoP). The four Judges expressed displeasure over delays in finalizing the MoP and observed that the government’s “silence” on the matter meant it had been accepted. The MoP lays down the procedure to be followed in appointment of Judges in the higher judiciary and while it came into existence in 1993, plans to revise the existing MoP have been stalled after differences between the Supreme Court and the government came out in the open.
It cannot be lost on us that the MoP was laid down on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-Judge Constitution Bench devised the Collegium system of appointments. The letter observed that the MoP was finalized and sent by the “then Hon’ble the Chief Justice of India to the government of India in March 2017”. The letter stated that, “The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra)”.
It is noteworthy that the letter also mentions a Supreme Court order dated October 27, 2017. The letter mentions that, “We deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest.”
To recapitulate, it was on October 27, while hearing a petition that was filed by lawyer RP Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP that a Bench of Apex Court comprising of Justices AK Goel and UU Lalit had issued notice to the Centre and directed the presence of Attorney General KK Venugopal.
The development came as a surprise as it meant clearly that the Supreme Court had taken up the matter, which till then was being dealt with on the administrative side, on the judicial side.
To put things in perspective, all these Four Justices have said in their letter that, “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” Who can deny that 10 High Courts in India are without proper Chief Justice and have only acting Chief Justice? Who can deny that there will be many vacancies in Supreme Court as many Judges are about to retire this year? Who can deny that there are more than 470 vacancies in the strength of High Court Judges? Who can deny that there are nearly 6000 vacancies in the strength of Judges in lower courts? Why are these vacancies not being filled? Why is Centre neglecting judiciary?
Why is Centre not creating more high court benches as recommended by 230th report of Law Commission of India? Why Nehru had the guts to create a bench just about 150 km away from Allahabad at Lucknow 70 years back in 1948 but no PM till now 70 years later had the courage to set up a bench anywhere in any part of UP even though Union Minister like Satyapal Singh demand 5 benches and Rajinder Aggarwal who is BJP MP from Meerut demands benches at Meerut, Agra and Gorakhpur and so also other MPs from West UP keep demanding benches regularly only to be ignored time and again?
All said and done, this open rift in the Supreme Court has sent shockwaves throughout the nation. Former CJI RM Lodha says the controversy could have been avoided but doesn’t fault the judges conscience call. He says during his term, he strictly went by seniority while assigning cases to avoid allegations of arbitrariness. He also said that, “I really cannot say what went wrong as I am no longer in the system. But I went strictly by seniority as a matter of policy to avoid allegations of arbitrariness. No one can then raise a finger. It ensures a uniform policy, brings in transparency and helps in avoiding ‘pick-n-choose’. These are practices based on convention. No judge is senior or junior. All judges are equal. Usually the top ten or 11 head benches. Matters were assigned to them (during my time) on the basis of seniority. This is the best way”. This “dangerous and discretionary bomb” must be defused by ending all discretion vested in CJI in this behalf by making written rules of going strictly by seniority as former CJI Lodha very rightly and strongly advocates! He rightly called for free, fair and frank discussions and deliberations at the highest level to resolve the issues. He also rightly pointed out that, “It must be done at the earliest so that the damage to the institution is repaired. I am deeply pained by what has happened. It is extremely sad. This has damaged the institution. The manner in which it was done could have been avoided. It could have been sorted out with discussions. Having presided over that court and been a part of it for 21 years, I can only say this is very, very unfortunate. But knowing the judges, the circumstances must have compelled them. All this is reflected in their letter. Their grievances must have been alarming. They must have deliberated and thought there was no other alternative to deal with their grievances once they took them to the CJI and they were not addressed.”
High-profile cases heard by SC’s junior judges
Political tussle is general in India; one can find it each and every day. However, the scuffle in the judiciary had never been noticed publically since India’s Independence. Recently, four of five senior most judges of apex court, Justices Chelameswar, Ranjan Gagoi, Madan B Lokur and Kurian Joseph questioned CJI (Chief Justice of India) Dipak Misra’s decision of allocating sensitive cases to junior judges and benches. They also questioned CJI’s decision of allowing a lower bench to investigate Justice Loya’s mysterious death, who was heading Sohrabuddin Sheikh encounter case. Nobody is entitled to question their right of organizing press conference, but, how can one forget those sensitive cases that were heard and headed by junior judges and benches? Given below are some sensitive cases:
Rajiv Gandhi case, 1998: Rajiv Gandhi assassination case was heard by K T Thomas comprising D P Wadhawa and Syed Shah Muhammad Qadari, who were assigned by the then CJI. After examining the case, on 5 May 1999, they confirmed the death sentence to Nalini, 36, Santhan, Murgan and Perarivalan. Here it is important to mention that these three were junior judges of the court who sat in court number 8.
Bofors case, 1999: The Rs 1,437-crore Bofors deal, signed in 1986, was believed to be one of the reasons for the Rajiv Gandhi-led Congress’ defeat in the 1989 Lok Sabha elections. In this case, Hinduja brothers were allegedly found guilty; they got bail by putting Rs 15 crore bonds. For examining the case, the then CJI assigned junior judge M B Shah who sat in court number 8.
Sohrabuddin Sheikh encounter case, 2007: Rubabbuddin Seikh wrote a letter in the month of December 2005 to the Chief Justice of India complaining about the killing of his brother, Sohrabuddin, in a fake encounter and disappearance of his sister-in-law Kausarbi. In 2007, the case was assigned to a bench sitting in court number 11 headed by Justice Tarun Chatterjee, who was the junior most judges at that time.
Spectrum Scam case, 2010: The scam which became super sensitive after the revelation of Comptroller and Auditor General (CAG) that the Telecom Ministry caused a notional loss of Rs 1.76 lakh crore to the national exchequer by allocating 2G spectrum and licences to some companies at casual prices and the then CJI assigned the case to court number 11 of Justices G S Singhvi and A K Ganguly to investigate the matter. The bench found 18 culprits in this matter at that time.
Coal scam case, 2012: CAG argued in its report that the Congress-led Government had the authority to allocate coal blocks by a process of competitive bidding, but it did not do so. And due to this, both public sector enterprises (PSEs) and private firms paid less in compare to legitimate prices. In its final report, CAG claimed the loss of Rs 1.86 lakh crore to the nation. And for its further investigation CJI assigned the case to Justice R M Lodha in court number 7.
Aadhaar validity case, 2012: In 2011, the Central government initiated a new identity document known as the Aadhar Card. The government made the Aadhar Card mandatory for numerous welfare schemes. These include subsidised food under the Public Distribution System, labour for a wage under the National Rural Employment Guarantee Scheme and even the Mid-Day Meal Scheme providing free lunches to schoolchildren. The Aadhar Scheme was challenged before the Supreme Court by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court, alleging several infringements of fundamental rights guaranteed by the Constitution. Later, the case was assigned to Justice B S Chouhan of court number 5.
Vijay Malya case, 2016: The Central Bureau of Investigation registered case against Vijay Mallya, Kingfisher Airlines, United Breweries Holding Limited and others for causing an alleged loss of Rs. 6,027 crore to consortium of 17 banks led by State Bank of India. Now, this case is being examined under the leadership of Justice K Joseph, who is in court number 10.
There are other such sensitive cases which were examined under junior benches like BCCI case, 2014 under Ananga Kumar Patnaik; Appeal by Kishore Samrite in Rahul Gandhi case, 2012 under Justices V S Sirpurkar of court no. 8. Later, it was sent to bench headed by B S Chauhan. The validity of Section 66A of IT Act, 2012 under justice Chelameswar; LGBTQ case, 2010 under Justice G S Singhvi , Best Bakery case, 2004 under Justice A Pasayat in court number 11.
Uday India Bureau
What is most distressing to see is that in the latest development, these 4 senior Judges who questioned the conduct of the CJI Dipak Misra will not be on Bench that will hear 7 key matters. They have been pushed to a corner just for speaking out their mind. CJI Dipak Misra put out a list of seven cases on January 15 which will be heard by a Constitution Bench starting January 18. Not one of the four Judges figure in this Bench!
KTS Tulsi who is an eminent senior lawyer said that, “I am sure they (4 judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety.” Justice RS Sodhi however feels that, “By press conference, are you going to hold a referendum and ask people what is right and wrong?” Prashant Bhushan defends them saying that, “Somebody had to confront the situation, where the CJi is blatantly misusing his powers. Hence the unprecedented step.”
Rajeev Dhavan who is a senior and eminent Supreme Court advocate and also a Constitutional expert minced no words in pointing out that, “In an unprecedented press conference on Friday, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph all but castigated CJI Misra for abusing his power of allotting cases to adversely affect “the overall functioning of the justice delivery system”. The CJI’s allotment power cannot be arbitrary. But Misra seems to think otherwise. In the medical admission scam case, the matter was sent to junior judge AK Sikri’s bench. Justice Chelameswar’s bench passed an order that the case should go to the five senior-most judges. Misra abandoned a Constitution Bench temporarily to write a note to overturn Chelameswar’s perfectly legal view. Whether by speech, in writing or by order, a CJI has no power to tick off another judge who is his equal. When the Constitution Bench reassembled, Misra said he rose early on a “personal matter”. There was nothing personal about it. On January 12, the case concerning Justice BH Loya’s death was not assigned to the correct bench. Instead, it was sent to the court where Justices Arun Mishra and MM Shantanaoudar were presiding. Before the court started proceedings, the four protesting judges met the CJI before 10.30 am. It can be inferred that Misra was not amenable to reason on a host of issues addressed by the judges. Such a shabby treatment of colleagues precipitated Friday’s press conference”. What an eminent and senior lawyer like Rajeev Dhavan says who has been practising in Supreme Court since last many decades has to be noted and treated with due respect!
Former Chief Justice of Punjab and Haryana High Court Justice (retd) Mukul Mudgal said that, “The four senior-most judges must have had compelling reasons to go public and they are not public hungry judges”. Subramanian Swamy who is a lawyer as also BJP MP in Rajya Sabha says that, “We cannot criticize them (the four judges). They are men of great integrity…We must respect them.” Salman Kurshid who is an eminent Supreme Court lawyer too lamented that, “I feel agony that the highest court of the land should come under such stress that forces judges to address the media.” Aditya Sondhi who is also a senior advocate says that, “When Nawab Iftikhar Ali Khan Pataudi playing for England refused to kowtow to captain Douglas Jardine’s ‘bodyline’ tactics in the 1932-33 Ashes, scarcely did anyone say, “It’s not cricket’. The Nawab was, in fact, lauded for speaking the truth to power. Sharp as it might seem, the extraordinary public display of disquiet by four senior-most judges of the Supreme Court on Friday is no less an act of honourable defiance. It is an extreme, almost visceral reaction to things amiss behind the closed doors of the Supreme Court. And the sheer lack of mechanisms to address them. Often such situations are addressed with quiet diplomacy and goodwill. But as Hippocrates prescribed, ‘desperate times, desperate measures’.”
Former Supreme Court Judge KT Thomas said that, “It should not become a precedent. Sitting Supreme Court Judges interacting with the media especially concerning matters relating to administrative, business and judgment side of the top court have never happened before. The image of the institution will not suffer from today’s event. The Supreme Court is far above all these.” Former CJI TS Thakur felt that this should have been sorted out within the institution instead of bringing them out in public. He asked that, “How did a press conference by four senior judges of the Supreme Court help resolve their discontent against the Chief Justice of India? It does not help anybody, particularly the institution if someone was to bring it out in the open. Roster issues are also matters which can be sorted out.”
Senior lawyer Rebecca John said it must have been the last resort available to the four judges. Attorney General KK Venugopal said that, “What has happened today could have been avoided. The judges will now have to act like statesmen and ensure that the divisiveness is wholly neutralized and total harmony and mutual understanding prevail in future. This is what all of us at the bar want and I am sure that the judges, including the CJI, will rise to the occasion.”
On a concluding note, the only silver lining out of this entire supreme judicial crisis in the highest court of India which is certainly most alarming is that fixed rules must be made clearly and very urgently stipulating that only seniormost Judges will hear sensitive cases and all discretionary power that is available right now with the Chief Justice by which senior Judges are overlooked favouring junior Judges should be immediately abolished! Unless this is done and strict rules are framed promptly in this direction of senior Judges hearing serious and Constitutional issues as advocated by former CJI RM Lodha, no truce brokered by anyone can ever last for a very long time under any circumstances! This has to be done without fail to restore the unflinching faith of the people in the judiciary once again!
By Sanjeev Sirohi