Something is drastically wrong in the highest court of the land. The judiciary was the last pillar in India’s democratic setup and was perceived with faith and trust. But this faith seem to have broken as the top court too is found to be not devoid of cracks. It’s independence and credibility is in question. Already, there is scant respect among the public for the executive, legislature and the media as they have failed to dutifully exercise their responsibilities. But, the judiciary was one flame that burned bright in the minds of the common man.
That things were amiss was in the air. There were murmurs in the exalted corridors of the Supreme Court that it was not functioning the way it should be—with justice and fairness. Differences between judges, selective allocation of sensitive cases to particular judges, interference of ministers who are practicing lawyers have all been subject of analysis in the corridors of the Supreme Court.
What the four judges said was nothing new. It is just that the tradition to not talk about it openly had buried the truth in the portals of justice.
Judges do not talk to the media. But four Supreme Court judges, J. Chelameswar, Madan Lokur, Kurian Joseph and Ranjan Gogoi broke that tradition saying they were forced to go to the media as all efforts at persuading Chief Justice Dipak Misra to listen to them or even respond to their letter that listed their concerns about the style and functioning of the judiciary was ignored.
In an unprecedented step, they called a press conference to say they were not happy with the way the court was functioning and raised concerns of how important cases with far-reaching consequences were sent to selected benches while keeping the four judges out. Without mincing words, they said independence of the judiciary and democracy was in danger. One of them even said it was for the country to decide where the chief justice should be impeached.
Serious charges.
The CJI briefly met the four judges on January 18 for the second time after their unprecedented presser. Ostensibly, it was to iron things out. But, a ten to fifteen minute meeting cannot find solutions to the such a large crisis. Sources said the four judges, along with two other judges, have drafted a proposal for the CJI to consider which they think will ensure a rational, orderly and transparent system in allotment of cases to different benches.
The crisis is far from over. Though there have been cosmetic moves to have a rapprochement, sources point out that there is tension simmering in the corridors of the Supreme Court.
A clear indication of this is how a new list of seven important cases that will soon be heard by a constitution bench does not have the names of any of the four judges.
Some of the important cases include challenging Section 377 which criminalises homosexuality, restricting the entry of women into Kerala’s Sabarimala temple, barring of Parsi women—who have married outside their community—into the fire temple, examining whether a woman should be punished for adultery as the Indian Penal Code presently only punishes men and whether legislators facing criminal charges should be disqualified.
There are also two petitions demanding an independent probe into the death of Special CBI Judge, Justice B.H Loya. He reportedly died of a sudden heart attack, but there were bruises on his body. Justice Loya was hearing the alleged Sohrabuddin Sheikh encounter case.
A new judge, M.B. Gosavi was appointed in place of Loya and within two weeks, BJP president Amit Shah, was acquitted. The CBI chose not to challenge the order. Justice Loya’s family suspected foul play in the death.
The Caravan magazine had, in a detailed investigation last year, raised concerns regarding the unusual circumstances of Judge Loya's death.
Justice Ranjan Gogoi said differences with the CJI started with the way the case regarding Justice Loya’s death was assigned.
The CJI chose to send the case relating to Justice Loya’s death to a bench consisting of Justices Arun Mishra and M.N. Shantanagoudar when it ideally should have been sent to a larger bench as the sudden mysterious death with various narratives needed more scrutiny.
The bench headed by Justice Arun Mishra, hearing the Loya case, has now ordered that the PIL asking for a probe into the death of the judge be heard by an appropriate bench.
In the medical admission scam case, Justice Chelameshwar’s bench had ordered that it should be heard by a bench of five senior most judges. But the CJI reversed the order and sent it to a junior judge A.K. Sikri’s bench.
Activist lawyer Prashant Bhushan has now got involved the in-house procedure of the Supreme Court, demanding a probe against the CJI for “several acts of serious misconduct”. He has submitted transcripts of taped conversations between the accused in the alleged medical bribery scam in Uttar Pradesh in which it was being said that it is possible to get a positive judgement for the medical college to function.
A section of lawyers and legal luminaries have said the four judges should have refrained from doing what they did as it had hurt the judiciary’s credibility.
Former Bombay High Court judge Narendra Chapalgaonkar told The Week: “Grievance may be justified, but the choice of forum is debatable. Could they have not opted some other method? A court should always present a picture of unity.”
However, the four judges said they had had little choice and they had even met the CJI with their grievances, but he had turned a deaf ear to them. Justice Chelameshwar said that they did not want history to say that they did not stand up when they should have.
Legal luminary Rajeev Dhavan pointed out that the four judges had castigated the CJI for abusing his power of allotting cases to adversely affect the overall functioning of the justice delivery system.
Meanwhile, the Supreme Court has refused to entertain a petition filed by Santosh Chariha, asking the court to restrain the media from publishing, discussing and politicising the issues raised by the judges against the CJI and the functioning of the court.
Transparency is one of the hallmarks of a good democracy and if the judges had not spoken up, those who need to know this, would never have known. Some sections have said it will now open doors for the executive to meddle with the judiciary, but that is no excuse for not speaking up. It is better that the truth be known so that the damage can be repaired.
Consumers of justice do not want to see the judiciary that is held in great respect to be a secret society. They want it to be transparent and responsible as the future of any democracy rests on it. The judges raised a procedural issue that has to be discussed and not brushed aside with the argument that the chief justice is an administrative head and a master of the roster and can assign any case to anyone he wants.
Former additional solicitor general Indira Jaising told The Week: “It is good that the judges did what they did as they pointed out a deep rooted malaise that exists between the executive and judiciary, how sensitive matters were placed before benches of preference and the delayed appointment of judges. We all need to know what is happening and it is good they spoke. They would not have done it had the chief justice listened to them and taken remedial measures.”
It must not have been easy for any of the four judges, who have the reputation of being upright, to do what no judge had done in India. More than anything, it demonstrated how there is a lack of transparency in the functioning of the apex court.
It also showed a lack of openness among the judges in the SC in discussing what is not comfortable.
How can a letter written by four senior judges pointing out flaws in the court’s functioning be ignored by the chief justice?
All of a sudden, doubts have risen about earlier decisions of the court and the appointments made by the collegium empowered to appoint judges.
There is a palpable fear that dissent is being stifled and institutions like the judiciary which uphold the best traditions in a democracy are being given the short shrift.
After all, it is the judiciary that the common man looks up to for justice and ensuring checks and balances as the others, including the media, have let them down in safeguarding their rights and upholding civil liberties.
The delayed appointment of judges was another sticking point. Many vacancies were pending and it was felt that the CJI was not aggressively pursuing it and getting the government to act on it. The Supreme Court had earlier restored the power of the collegiums to appoint Supreme Court and High Court judges.
Though the earlier chief justice had sent the finalized version of the Memorandum of Procedure to the Modi government in March last year, there has been no response despite the fact that large number of vacancies of judges were waiting to be filled.
Though the CJI has met the four judges, it is not business as usual as their concerns have not been addressed as far as the allocation of cases and other administrative challenges of the court are concerned.
Clearly, cosmetic moves are hardly going to iron out the situation. What is needed is to restore confidence in the judiciary by looking at the issues straight in the face and not sweep it under the carpet and pretend the court was not rattled by allegations of the senior judges.
The sooner the damage is repaired, the better.
(Ramesh Menon is an author, award-winning journalist, documentary filmmaker and a corporate trainer)
