The Judicial Coup

Updated: January 25, 2018 10:49 am

Looked dispassionately, the unprecedented “war” that four judges of the Supreme Court are fighting publicly with the Chief Justice Dipak Misra is a clash of egos, bereft of any merits. However, the matter is serious because the honourable judges have not only behaved most dishonourably but also encouraged the politicians to interfere in the matter and thus made it now difficult to be resolved amicably within the confines of the Apex Court of the country.

After all, Rahul Gandhi, who has taken over as the President of the Congress, arguably the leading opposition party, decided to hold a press conference following the press conference or “the open war” by Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurian Joseph last Friday (January 12). Press reports say that Rahul held the press conference after consulting his senior colleagues, who, in turn, are leading lawyers of the country like Kapil Sibal and P C Chidambaram (both senior ministers in the previous Congress-led UPA government). He made it absolutely clear that he agreed with the rebelling judges.

And interestingly, many so-called liberal/secular intellectuals and lawyers have joined the “war”. Some of them (“hardcore activists” spending all their energies over the last three years on demonizing the Modi government at the centre and the ruling BJP) have even demanded the impeachment of the Chief Justice. But that is not all. The entire episode is being given the shape of a political battle against the government led by Narendra Modi. As a veteran diplomat rightly says, “This seems to be part of a larger conspiracy to destabilise the government. First came the social media aggression just before Gujarat elections and propping up of Hardik, Jignesh, and Alpesh in Gujarat. Then came the mayhem in Maharashtra with Mewani and (Umar) Khalid being present. In fact, 2018 and 2019 will not be peaceful years; every effort will be made to show government in bad light and create mayhem before 2019 elections.”

I am not sure when the dissenting or rebelling judges had anticipated the political implications of their action, even though CPI Member of Parliament D Raja did visit on January 12th afternoon the residence of Justice Chelameswar, as he said, in his “personal capacity”. Because, I do not think that one can make a case of explaining their behaviour on the basis of their political/work-related/family association with established political parties. The dissenting four and the Chief Justice come from dissimilar backgrounds, if one views the things from the angle of politics. Let us see each of them.

Before being elevated as the Additional Judge of the Andhra High Court on June 23, 1997, Justice Chelameswar had been working as the Additional Advocate General since October 13, 1995, of the then state government led by N. Chandrababu Naidu. It was the government of Telugu Desam, whose principal opponent has been the Congress party.

Justice Gogoi was a practicing lawyer at the Guwahati High Court until he became its permanent judge on February 28, 2001. He did not represent in any capacity the government of the state as such as a lawyer, but then the fact remains that he is the son of Kesab Chandra Gogoi, a leading Congress politician, who was the Chief Minister of Assam in 1982.

Justice Kurien Joseph, who began his legal practice in 1979 at Kerala High Court, became its permanent judge on July 12, 2000. But in between, he represented the Congress government in the state. He was appointed government pleader in 1987 at Kerala High Court when K Karunakaran was the Chief Minister. In 1994, Karunakaran made him the Additional Advocate General of Kerala and he continued in that position till 1996 even under the chief ministership of A K Antony.

Justice Madan B Lokur started his legal practice in the Supreme Court and Delhi High Court in 1977. He was appointed Additional Solicitor General of the then Vajpayee government and continued in that position until his appointment as Additional Judge in Delhi High Court on February 19, 1999.

What about the Chief Justice? Justice Misra enrolled at the Bar in 1977 and practiced at the Odisha High Court and the Service Tribunal. He was appointed an Additional Judge of the Odisha High Court in 1996 and was later transferred the following year to the Madhya Pradesh High Court. Unlike his other Justice-brothers, he did not represent any government as such, but then the fact remains that his own paternal uncle was former Chief Justice of the country, Justice Rangnath Misra, who after his retirement had joined the Congress party and became a Rajya Sabha Member on the Congress ticket from Odisha. His first cousin Pinaki Misra, son of another paternal uncle Loknath Misra (former Governor of Assam), has been a Member of Parliament from Puri (Misra family’s home district), two times on a Congress ticket and the third time (present tenure) from the Biju Janta Dal, the ruling party in the state. In fact, Justice Dipak Misra’s late father Raghunath Misra was also a Congress MLA in Odisha, representing the constituency of Banpur, Mishras’ home town. Significantly, his late grandfather Pundit Godabarish Mishra was not only one of the tallest literary figures but also a Congress legislator. Thus, we can say that if anything, Justice Misra has a powerful “Congress connection”.

Viewed thus, it is all a mixed composition. While two of the warring judges have some Congress connection or the other, third’s connection has been with a party that is now an ally of the BJP and the fourth had direct links with the BJP. And they are fighting against a brother Judge (Chief Justice), whose connection with the Congress can be argued to be the strongest. In other words, political affiliations or preferences are not the issue in this war. Even if one goes with their respective judicial verdicts on the issues brought before them in recent years, one cannot discern a particular trend that could be of any distinct political position. It is true that Justice Kurian had protested against the Modi government’s decision to hold All India Chief Justice Conference in 2014 on the Good Friday, but that was not a political protest as such; at the best the decision could be said to have had disturbed him as a practicing Christian.

What then are the issues involved in this war? In my considered view, after going through their letter to the Chief Justice, the warrior Judges say that the Chief Justice is ignoring them in allocating important cases; that the Chief Justice is only “first among equals”, and, thus, not superior to them; and that the chief Justice has been silent to “the wrong verdicts” by some Judges in the Supreme Court (they have cited the case of the memorandum of procedures on the appointment of the High Court and Supreme Court Judges).

But then the fact remains that there has to be somebody in the Supreme Court who will have the authority to distribute work. It will be sheer anarchy if every Judge will demand the case he or she will like to hear. It is like some clients and their lawyers demanding that their cases will be dealt with by the benches or judges of their choice. Even otherwise, we all know that in a parliamentary democracy, the Prime Minister is first among equals, but then it is he or she who distributes portfolios to his or her ministerial colleagues. Similarly, it always has been the case that the Chief Justice is the master of the court’s roster as far as the transaction of the business is concerned. How can Justice Dipak Misra surrender that right now?

Secondly, if the warrior judges think that they all are equals, it is absolutely ridiculous on their part when they say other brother judges of the Supreme Court are junior and hence incompetent to deal with the cases that they would like to deal with and monopolise themselves. In fact, as has been reported by a leading national daily recently, over the last 20 years almost all the important judgments having constitutional and massive political implications have been delivered by the so-called junior judges. Besides, it is outlandish that out of the 26 Judges that the Supreme Court has at the moment, 21 of them can be branded “junior” (leaving apart the Chief Justice and four rebels), considering the fact they came to the Supreme Court on the basis of their experience and competence; they are among the best legal minds of the country and almost all of them, like the rebels, are in their sixties.

These rebels and their ”activist” supporters, including political parties like the Congress, seem to be suggesting that the present crisis erupted since the ”collegium” of the five senior-most judges (the Chief Justice and four rebels) is not functioning to decide on all the administrative matters, including the allocation of work to the benches. But nothing can be a more perverse logic than this.

The collegium system, as it has evolved through judgments of the Supreme Court, deals only with appointment and transfer of Judges in the Supreme Court and High Courts. As things stand now, in 1998, the Supreme Court laid down nine guidelines for the functioning of the Coram for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This opinion laid down that the recommendation should be made by the CJI and his four senior-most colleagues. It also held that the Supreme Court Judges, who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government for the appointment. It is thus clear that the collegium, a forum for appointment, does not deal with other administrative matters of the Court; that arena is strictly under the control of the Chief Justice of the country.

In other words, the demand of the warring Judges is devoid of any real merit, though it could be legitimately argued that as the chief of the institution Justice Misra should be a little more sensitive to the interests and desires of his older colleagues. They deserve that respect. But it is a clear case of crossing the line when the disgruntled Judges go to the town and hold press conferences to air their woes. One imagines what moral right they will have to be parts of a bench that hears the case of defiance by a Lt. General to the Army Chief or that that by a senior Police official to the Police Commissioner of Delhi.

And what is worse in this case is that it is as clear as daylight that in their fight against the Chief Justice these Judges have collaborated with some lawyers who have not been able to impress the Chief Justice in the court room in certain cases, of late. The whole rebellion that came to the surface on January 12 is not the sudden outburst against the Chief Justice giving the case of the disputed death of a CBI-court Judge in Maharashtra (who was dealing with a case relating to the BJP President Amit Shah) to a particular Judge in the morning (surprisingly, the said Judge must have gladdened the heart of many as he has given the green signal to go ahead with the case), bypassing the “senior” warring Judges.

It is certainly not a coincidence that one such lawyer, Dushyant Dave, had written on January 12 edition of The Indian Express how the Chief Justice of India is exercising his power to constitute benches, allocate cases in a manner that raises questions about independence of judiciary. As a journalist, I can vouchsafe that the piece must have been given latest by January 11th afternoon for its printing in the night. The points of Dave’s piece and that of the Judges’ letter to the Chief justice are nothing but identical. Another lawyer, who is at the forefront in demonising the Chief Justice, is Prashant Bhushan, whose only name to fame has always been his expertise in slanderous allegations against and character assassinations of others. To the best of my knowledge, Bhushan has never been able to prove his point in a single case in the ultimate analysis.

This being the case, why has the Congress under Rahul Gandhi decided to join their war against the Chief Justice? I have already quoted a veteran diplomat on this. But then let me add something. It is just not incidental that Rahul Gandhi’s anguish has followed the Chief Justice Misra deciding to open up the files of 1984 Sikh riots and not listening to Kapli Sibal to defer the case of the Ramjanmabhoomi at Ayodhya. Let us also not forget the facts that the late Indira Gandhi had favoured the idea of “a committed judiciary” and that it was a Congress government that had begun the practice of supersession of difficult judges and rewards to pliant judges. The Congress has damaged the judiciary, one vital pillar of our vibrant democracy, badly in the past and is doing that again now by blindly supporting the judicial coup and converting it into a political battle against Modi.