'Unprecedented' seemed to be the word of the day in the media. As much as the word may have become hackneyed and generalised, Friday's developments warranted the use of the term. Divisions in the Supreme Court burst into the open for the first time after four senior most judges came out publicly against the Chief Justice of India, an office that presides over the third pillar of our democracy.
Four out of the five members of collegium took the unprecedented step of addressing the media to accuse Chief Justice Dipak Misra of breaching rules and "selectively assigning" cases that have "far-reaching consequences for the nation" to "junior judges."
At a hurriedly called press conference at his residence, Justice J Chelameswar and three other colleagues said the Supreme Court administration was "not in order" and their efforts to persuade Justice Misra even this morning "with a specific request" failed, forcing them to "communicate with the nation" directly.
The judges raised a host of issues, generally indicating that all was not well within the judiciary. But their primary contention remained on the way the CJI exercised his administrative powers and allotted crucial cases to benches, apparently bypassing these senior most judges.
The four judges — Justices Ranjan Gogoi, Kurian Joseph and Madan B Lokur besides Justice Chelameswar — released a letter they wrote to Justice Misra a couple of months ago, conceding that he was the master of roster but that was "not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues".
What is the SC roster the dissenting judges objected to?
As this Firstpost article explains, in the early years of its existence, the Supreme Court had only seven judges and they would all hear matters together, which means all judges would have a chance to hear all the cases. But as the court expanded and its workload increased, the Supreme Court became an institution with multiple benches.
Matters are heard by benches comprising one, two, three, five, seven judges or more judges depending on the matter. The record of the allotment of cases to benches is called the roster. The CJI is the first among equals at the Supreme Court and his judgments carry no more weight than any other judge of the court. But the CJI does have more administrative powers, which includes control on the roster. This means it is up to the CJI to decide which set of judges hears which matters, but like all powers, this discretion too must be exercised with some caution.
A particular judge may have domain expertise in an area of law and therefore would be suitable for a particular matter while another judge may not. These decisions are often taken by the CJI while assigning matters. While there is usually a system that is followed for most regular cases, when it comes to constituting special benches or assigning matters of constitutional import, the exercise of this power becomes as important as some of the decisions of the court itself.
The clash among the judges in the highest court also comes in the wake of a controversial order in November in which Justice Misra declared that the Chief Justice "is the master of the roster" having exclusive power to decide which case will go to which judge.
The CJI had given the order a day after a two-judge bench headed by Justice Chelameswar had passed an order that a five-judge bench of senior most judges in the apex court should be set up to consider an independent probe into a corruption case in which bribes were allegedly taken in the name of settling cases pending before Supreme Court judges.
Holding that the CJI was only the first among equals, the four judges contended that there were well-settled and time-honoured conventions guiding the CJI in dealing with the strength of the bench required or the composition thereof.
"A necessary corollary to the above mentioned principle is the members of any multi-numbered judicial body, including this court, would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition-wise and strength-wise with due regard to the roster fixed," they wrote in the letter.
They said any departure from the two rules would not only lead to "unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution" but would create "chaos".
The Justice Loya case angle
Another key word that kept cropping up in Friday's controversy and the subsequent debates was the Justice Loya case. This was because, that although the justices refrained from naming specific instances to point out the problems they had with CJI, a PIL requesting probe in Justice Loya's death was an anomaly.
Asked specifically if they were upset over reference of the matter seeking a probe into the suspicious death of Judge Loya, Justice Gogoi said: "Yes."
Judge Loya, who was hearing a case relating to the killing of Sohrabuddin Sheikh in an alleged fake shootout in which BJP chief Amit Shah was named an accused, died of cardiac arrest in 2014. His family has raised doubts over the circumstances in which judge Loya died and sought an independent probe into it, alleging that the judge received a bribe offer just days before his death to let off Shah. Also, the judge who replaced Loya in the case, acquitted Shah just two weeks after Loya's death.
Pleas seeking probe came up for a hearing in the Supreme Court on Friday when the top court expressed concerns over it and said it was a "serious issue". It asked the Maharashtra government to produce all the documents related to the case before 15 January.
In a seven-page letter, the four judges said they were not mentioning details of the cases only to avoid embarrassing the institution because "such departures have already damaged the images of this institution to some extent".
Reacting to the allegations raised by the judges, Congress president Rahul Gandhi, holding a press conference, sought an independent SIT probe into the case.
Appointment of judges
Another controversial issue which has been stewing for a long time was brought up.
The four judges also touched upon the delay in finalising the Memorandum of Procedure (MoP) on appointment of judges over which the Supreme Court had locked horns with the government.
The government, the letter said, had not responded to the communication and "in view of this silence it must be taken that the MoP has been accepted by the government on the basis of the order of this court".
Although a two-judge bench hearing a petition by lawyer RP Luthra about the delay in finalisisng MoP rejected Luthra's challenge seeking cancellation of the appointment of judges without the MoP, the two justices found merit in the arguments stating that "there should be no further delay in finalisation of MOP in larger public interest".
The matter, however, was transferred to a three-judge bench. On 8 November 2017, a three-judge bench, comprising Misra and Justices AK Sikri and Amitava Roy recalled the 27 October, 2017 order by Goel and Lalit saying that "these are not matters to be taken up on the judicial side like this”.
This recalling of the order is what the four justices Chelameswar, Gogoi, Lokur and Joseph refer to in their letter.
"Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices' Conference and by the full court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a constitution bench."
"The above development must be viewed with serious concern," they added.
Justice Chelameswar told the media that they were "convinced that unless this institution is protected and maintains its requirements, democracy will not survive in the country or any country... The hallmark of a democracy is independent and impartial judges.
"Since all our efforts failed... Even this morning, on a particular issue, we went and met the Chief Justice of India with a specific request. Unfortunately we could not convince him that we were right."
Justice Gogoi said they were "discharging debt to the nation that has got us here".
BJP slams Congress, govt takes hands-off approach
Sambit Patra of the BJP, speaking to ANI, said: "This is an internal matter of the Supreme Court. Attorney-General has given statement. 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 government appeared to distance itself from the controversy, saying the judges should sort out the issue themselves.
Minister of State for Law PP Chaudhary said: "Our judiciary is one of the known, recognised judiciaries in the world. It is an indepenedent judiciary. At this stage I think no agency is required to intervene or interfere. The Chief Justice and other members should sit together and resolve. There is no question of panic."
CNN-News18, quoted highly placed government sources as saying: "This has happened before between Justices Bhagwati and Mehta. It’s a clash of personalities and government needn't get into it. The government is the arbiter of society, and not the judiciary. Ideally, the four judges should stay away from meeting politicians."
The response came after reports of CPI leader D Raja meeting Justice Chelameswar came. Raja, however, ruled out suggestions that politicians should not meddle in the controversy, saying he was affected as a citizen. He said that Parliament cannot remain a mute spectator and it will have to device methods to sort out problems like this in the top judiciary.
Two more Supreme Court judges, Justice SA Bobde and Justice L Nageshwar Rao, are understood to have called on Justice Chelameswar.
With inputs from agencies
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Updated Date: Jan 12, 2018 22:31:00 IST