Justice V D Tulzapurkar, an eminent retired judge of the Supreme Court, had observed that “sycophantic Chief Justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another. “The Chief Justice is a man with all the failings, all the sentiments and all the prejudices which, we as common people have,” B R Ambedkar had said in the Constituent Assembly, opposing giving the Chief Justice veto power in appointing judges.
In the National Judicial Appointments Commission (NJAC) judgment, four judges of the Supreme Court struck down the Modi government’s first major legislative initiative on grounds of compromising the “primacy of Chief Justice’s opinion” in the appointment of judges of the Supreme Court and high courts. The lone dissent was authored by Justice J Chelameswar.
With four senior judges now questioning the authority of the Chief Justice even in administering the court, things have come full circle. It is indeed the worst crisis of our judicial history and the entire legal fraternity is in shock with such divisions within the collegium. Decisions on appointment and transfer of judges may now come to a standstill.
The SC has faced similar moments of crisis in the past, but those were confrontations between the government and the court. In the 1967 Golaknath case, the SC in a 6:5 ruling asserted itself and denied Parliament power to amend the Constitution and fundamental rights. In the 1972 Keshvanand Bharti case, the SC by a 7:6 majority subjected Parliament’s power to amend the constitution only to the doctrine of “basic structure”. Thus Parliament cannot anymore change the basic structure of the Constitution.
Soon after this order, the Indira Gandhi government appointed Justice A N Ray, a committed judge, as the new CJI superseding three judges, who immediately resigned in protest.
On May 12, 1973, M Kumaramangalam, Indira Gandhi’s cabinet colleague, in a speech to Parliament defended Ray’s appointment as CJI: “We had to take into account what was a judge’s basic outlook on life… Was it not right to take all these aspects into consideration? Was it not right to think in terms of more suitable relationship between the court and the government?
As CJI, Justice Ray did try to overturn Keshavanand Bharti. After two days of tense hearing, the review bench was abruptly dissolved after it realised that no one had approached the court with a review petition.
Then came the 1976 ADM Jabalpur case where four judges held that during Emergency a citizen has no remedy against illegal arrest due to suspension of right to life and personal liberty under Article 21. Justice H R Khanna was the lone dissenter, and was soon superseded by another committed judge, Justice Hamidullah Beg. Khanna resigned. This judgment was recently overruled in the privacy case.
Judges versus CJI
But the current crisis is of different magnitude as the four judges have raised some very pertinent issues about the administrative functions of the CJI. So it is now judges versus CJI. It is a fight within. The integrity of the apex court is now at its lowest ebb and it will take years to regain people’s confidence.
To the credit of the four judges who called a press conference on Friday — J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Joseph — they did not say much except this is an “extraordinary” event in the judicial history and that circumstances compelled them to reach out in order to discharge their “debt to nation” as the credibility of the highest judiciary was at stake. They repeatedly asserted that they did not want to “politicise the issue” and were not seeking any action against the CJI. They only made public a seven-page letter jointly written to the CJI recently.
They did say that all is not well with the administration of the court for the last two months and they did make sincere efforts in sharing their concerns with the CJI and did everything within their powers to persuade him to take necessary remedial measures. But their efforts were in vain and therefore, reluctantly, they were sharing their pain and disappointment with the people, the ultimate sovereign.
They also said that they are convinced that unless the SC’s independence and integrity is preserved , democracy would not survive as an independent judiciary is the hallmark of a successful democracy. They also justified their strange action of reaching out to people due to the fear that future generations of so called “wise men” may blame them for not rising up to the occasion. They also asserted that they have not sold their souls.
Without giving any concrete details they repeatedly referred to a “particular case” and “particular manner” in which it was handled. Since Friday, the SC was to hear the matter of Judge B H Loya’s mysterious death which has been assigned to a relatively junior judge ignoring several senior judges. It seems they were probably referring to this high-profile case. These senior judges did meet the CJI Friday morning but nothing came of this meeting and out of sheer desperation or possibly in a knee-jerk reaction, on a working day, they decided to leave their judicial work and reach out to the nation.
It seems at least two judges, in response to a pointed question about Judge Loya’s case being the “particular case”, nodded their head in agreement. In a welcome order, the SC bench hearing the matter Friday sought Loya’s autopsy report.
The following core issues were raised in this letter:
They did acknowledge the power of the CJI as master of the court’s roster to ensure disciplined and efficient transaction of the business of the court but pointed out that there were established conventions which have not been adhered to lately in some sensitive matters. They explicitly asserted that master of roster does not in any way mean “recognition of any superior authority, legal or factual of the Chief Justice over his colleagues”.
The letter went on to boldly state that “Chief Justice is only the first amongst the equals — nothing more or nothing less.” The letter also said that details of bench formations are deliberately withheld to avoid embarrassment to the court. The most damaging statement of the letter is “there have been instances where cases 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. This must be guarded against at all cost.” The underlining of the last sentence shows bench hunting is the central issue.
Lately, bench formation in the SC has been against the text of the Constitution. The Constitution says a constitutional issue shall be heard only by a five-judge bench but recently a number of two- or three-judge benches have heard and decided matters involving issues of constitutional interpretation.
DELAY IN MoP
The judges also took notice of the strange order of October 27, 2017, passed by a two-judge bench of Justice A K Goel and Justice U U Lalit on the delay in the finalisation of the MoP on the appointment of superior judges. Since the NJAC matter was heard by a constitution bench, this matter should have ideally been given to the same bench as with the exception of Justice Khehar, the other four judges are still available. The judges also made an interesting point in stating that since the MoP was finalised with extensive discussions within the collegium as per the NJAC decision of October 16,2016, and was sent to the government by the then Chief Justice J S Khehar in March, 2017, the government’s silence indicated it has accepted it and therefore reopening this issue by the two-judge bench was not proper. The government will not be happy with this interpretation of its silence.
They also said that in the contempt matter of Justice C S Karnan on July 4, 2017, none of the seven judges raised the issue of MoP though two judges did raise the issue of need to evolve methods of judicial accountability other than impeachment. As a matter of fact, in Indian history no judge has so far been impeached for “misconduct or proved misbehaviour”. These are the only grounds on which judges can be impeached.
Towards the end of the letter, the four judges have said that once the CJI takes corrective measures about this two-judge bench order in the R P Luthra case on the MoP, they will apprise him of other similar judicial orders which “require to be similarly dealt”. As a matter of principle, judges are not supposed to comment on the judicial order of brother judges, but this is an unprecedented moment.
In a rule-of-law-based legal system, no one including the CJI is above law. The CJI does have the power to form benches but this power is to be exercised judiciously, not arbitrarily. Arbitrariness is antithesis to rule of law and constitutionalism. The SC itself has come down heavily on litigants on of “bench hunting”. It is difficult to believe the CJI himself is doing it.
Most probably there is no truth in the allegations against CJI but with this press conference, people’s confidence in the judicial system has now reached rock bottom and the SC is suffering from a serious crises of legitimacy.
The government has refused to intervene and termed it an internal matter of the judiciary. One hopes that judges will sit together and amicably resolve this crisis. Let the CJI demonstrate his leadership qualities which he has in abundance to take brother judges along. The CJI should use this opportunity to bring in judicial discipline. In a number of cases, smaller benches have overruled decisions of larger benches.
Judges must realise that the government may use this crisis to have greater say in judicial appointments and transfers. It may come up with another version of NJAC. Whether these judges have strengthened or destroyed the judiciary, only time will tell.
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