Questions raised by Supreme Court justices’ presser in 2018 still haunt judiciary

On August 31, 2020, a Supreme Court bench headed by justice Arun Mishra, in its judgment in the contempt case against senior lawyer Prashant Bhushan, said the court hoped that the January 12, 2018, press conference by four senior-most justices of the court was the “final and last” occasion when the judges had gone to the media.

“We hope it was the first and the last occasion that the judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly when allegations made, if any, publicly cannot be met by sufferer judges. It would cause suffering to them till eternity,” said the three-justice bench.

“Truth can be the defence to the judges also, but they are bound by their judicial norms, ethics and code of conduct,” it further said.

The irony of the situation was unmistakable as justice Mishra commented upon the justices' press conference in what was his swan song and he wrapped up his judicial career. The reason for this is that the four senior-most justices had sought to highlight the issue of selective allocation of politically sensitive cases by the then chief justice of India Dipak Misra. Many of those cases had been allocated to Mishra.

The bench headed by Mishra had convicted Prashant Bhushan of criminal contempt of court and levied a penalty of Rs 1 on him in a judgment that was widely debated. For good measure, the bench had clarified that the case was allocated to it not by Chief Justice of India S.A. Bobde, but the next in line, Justice N.V. Ramanna.

Three years after the sensational press conference by the four senior-most justices of the Supreme Court, which had shocked the nation and brought to the fore the fissures in the topmost echelons of the judiciary, the dramatis personae in the episode have all exited from the stage, having since retired. But the questions raised by them still haunt the judicial system, and it continues to struggle to repair the damage done to its image.

The four senior-most justices—J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph—had sought to highlight their concerns with regard to the manner in which the apex court was being administered by Misra.

The justices had said they were discharging their duty to the nation by placing before the nation the problems in the functioning of the Supreme Court and even said that it did not bode well for democracy as the independence of the judiciary was under threat.

The issues that the press conference flagged were the allocation of politically sensitive cases to certain benches and the opaqueness in the decision making of the Supreme Court collegium.

What followed was a debate over the role of the chief justice as the master of the roster, and it was discussed if greater transparency could be infused into the process of allocating cases by expanding the process to include consultation among the five senior-most justices of the Supreme Court.

The roster, or the work allocation of the justices, is now public. It was made subject-wise by Misra shortly after the justices’ presser. However, it is the chief justice of India who still controls the system of allocation of cases.

The Supreme Court had in fact only re-emphasised the chief justice’s pre-eminence as the master of the roster.

“In case the expression ‘chief justice’ is to be interpreted as ‘collegium’, it would be difficult to have smooth day-to-day functioning of the Supreme Court, or for that matter, the High Courts… meeting of collegium for the purpose of assigning the cases to a particular bench on daily basis is clearly impracticable,” a bench comprising Justices A.K. Sikri and Ashok Bhushan had said in its judgment on a petition filed by jurist Shanti Bhushan.

Shanti Bhushan had sought directions to read the expression ‘chief justice of India’ as the collegium of the five senior-most justices, so that the power to allocate cases and set up benches is not concentrated in one person.

Another issue that was discussed in the backdrop of the press conference was the need to put in place guidelines on setting up benches and allocating work to the judges. However, that has not been worked out yet.

Also, there has been criticism of the Supreme Court for retracing its steps with regard to bringing in greater transparency in the selection of justices by the Supreme Court collegium. The justices' panel has discontinued the practice, brought in by Misra, of enlisting details related to its decisions with regard to appointment of justices.

The top judiciary is at present not, at least on the face of it, as fractured an institution as it had appeared to be in January 2018. It is said that there is greater consultation among the justices with regard to matters pertaining to the running of the court.

However, it has been an uneasy time for the judiciary, with the tenure of Gogoi as chief justice of India mired in controversy. Gogoi, one of the justices who took part in the press conference, was also at the centre of an intense debate post-retirement as he accepted the Narendra Modi government's proposal to nominate him to the Rajya Sabha. The continuing questions about the functioning of justice Mishra, and the debate over the decision of a bench headed by him to convict Prashant Bhushan for contempt of court kept the discussions about the working of the apex court going.

And then came the sensational move by Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy to write to the chief justice of India, levelling serious allegations against Justice N. V. Ramanna, the next in line to be the CJI. The charges were mainly relating to Ramanna's alleged interference in the functioning of the state High Court to favour former chief minister N. Chandrababu Naidu.

There appears to be little change in the Supreme Court three years after the justices' press conference.