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Soni Mishra
Soni Mishra

COVER STORY

Law and disorder

38-supreme-court-building Courting trouble: The Supreme Court seems to be in its worst crisis ever | J. Suresh

With a news conference, four most senior SC judges threw the judiciary into a crisis

  • The bitterness at the tea break on January 15 was evident. Apparently, some judges were so miffed that they did not even shake hands with the four dissenting judges.

  • On January 16, according to sources, Misra (in pic) met the four judges, but little headway was made. He offered no concrete proposal and was adamant that he was following the set convention in assigning cases.

  • The last straw for Chelameswar and the others seemed to be the B.H. Loya (in pic) case, as it dealt with the suspicious death of a member of their fraternity.

  • “The chief justice, as master of the roster, will be more vigilant. A message has gone to future chief justices, the bar and political parties that you cannot manipulate the judiciary.” - Sneha Kalita, Supreme Court lawyer

It was tea time, and the tension could be cut with a butter knife. On the morning of January 15, the Supreme Court judges assembled for the customary get-together over tea, just before court resumed work after the weekend. It was the first time the judges had come face to face after the four most senior judges (after the chief justice) had, on January 12, broken convention to hold a news conference to “convey to the nation” that things were “not in order” in the apex court. Among other things, they had questioned Chief Justice Dipak Misra’s style of administration.

There was an uneasy calm in the judges lounge even as pleasantries were exchanged. Soon, Justice Arun Kumar Mishra broke down, saying that the respect he had earned over years had been destroyed by the four judges—Justices Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph.

The judges had said that politically sensitive cases were being assigned to handpicked benches consisting of junior judges. After their news conference, there was speculation on whether they were referring to the cases sent to Arun Kumar Mishra’s court. An anguished Mishra apparently said that they should have killed him with a bullet rather than killing his reputation, before being consoled by the four judges.

Chelameswar and company were then peppered with some tough questions by the other judges. A junior judge said they should have taken the other judges into confidence, and consulted them, rather than going to the media. “We could have discussed the differences among us. The integrity and capability of junior judges are being questioned,” he said. Then, responding to the judges’ argument that all options had been explored, he said they could have pressed for a meeting of the full court to discuss the issues.

Overall, the tea break laid bare the mistrust among the foremost members of the judiciary. On the surface it was business as usual, with judges resuming their work, but the bitterness was evident. Apparently, some judges were so miffed that they did not even shake hands with the four dissenters.

The foursome, all members of the collegium, had stunned everyone, including Misra, with their news conference. They had met Misra on the morning of January 12, and had reportedly told him about their reservations regarding the case of Justice B.H. Loya’s death. (Before he died, allegedly of cardiac arrest, Loya had been hearing the Sheikh Sohrabbudin fake encounter case, in which BJP president Amit Shah was an accused.) The case was assigned to a bench led by Arun Mishra. They said that, as the case was politically sensitive, it should have been heard by a senior judge.

41-supreme-court-judges-news-conference Justice league: (From left) Justices Kurian Joseph, Jasti Chelameswar, Ranjan Gogoi and Madan B. Lokur at the news conference on January 12 | Arvind Jain

Misra reportedly stood his ground. The four judges left, saying they were going to do what they thought was right. And, thus came the news conference.

But, even before the judges reached the lawns at Chelameswar’s residence, people at court number four, presided over by Lokur, had sensed that something was amiss. The judge, known for his unhurried manner, showed unusual alacrity in finishing his work that morning. Soon after, he was at Chelameswar’s residence, along with the other three judges, and took his place before a bouquet of microphones.

Chelameswar began, saying they were forced to come to the media as what was happening in the court had endangered democracy. The issue, he said, was specified in a letter they had written to Misra a couple of months before. It was about chief justice “selectively” assigning cases having “far-reaching consequences for the nation and this institution” to benches “of their preference”.

For the four judges—including Gogoi, who is next in line to be chief justice—to break the judicial code of conduct, the matter had to have been that serious. The most senior members of the judiciary raised doubts about its credibility. The heart of the matter, however, was the executive’s interference in the functioning of the court. The question being asked now is whether politically sensitive cases were being assigned to handpicked benches to suit the government.

Insiders said the top court’s corridors had been abuzz with speculation that cases were being marked arbitrarily. “Even without the judges holding the news conference, people had observed certain discrepancies in the recent past. Many people were not surprised with the news conference,” said a senior lawyer. “We had seen that matters were not being assigned to senior judges. Even public interest litigations with a social justice bent, which would normally go to Justice Lokur, as he is known to be a specialist in the area, were not assigned to him.”

45-cji-dipak-misra Misra | J. Suresh

Said lawyer-activist Prashant Bhushan: “The issue sought to be highlighted is how the chief justice has been arbitrarily using his power as master of the roster to send cases to handpicked benches. He has indulged in bench fixing by sending politically sensitive cases to particular benches.”

The judges had, in their letter to Misra, mentioned the R.P. Luthra vs Union of India case, which dealt with the Memorandum of Procedure (MoP), for appointing judges to the higher judiciary. Last October, this case was heard by a two-judge bench, which ruled that there should be no further delay in finalising the MoP. In their letter, the four judges, however, said that when the MoP “was a subject matter of a decision of a Constitution bench of this court, it is difficult to understand as to how any other bench could have dealt with the matter”.

Apparently, the judges feared this could give the government an opportunity to exercise a bigger role in the appointment of judges.

The other contentious matters reportedly include the Aadhaar case, which was originally heard by a bench that included Chelameswar, before it was referred to a nine-judge bench to decide on whether privacy was a fundamental right. The bench, last August, ruled that it was. However, when Misra constituted a five-judge bench to hear other Aadhaar-related cases, he did not include Chelameswar.

Then there is the case challenging the appointment of IPS officer Rakesh Asthana as special director of the Central Bureau of Investigation. The matter was before a bench of Gogoi and Justice Navin Sinha. But Sinha recused himself from the case, and the matter was later listed before a bench headed by Justice R.K. Agrawal. However, on the same day, Gogoi was on a bench with Justices R.F. Nariman and Sanjay Kishan Kaul, and the matter could have been listed before them.

Another is the referral of a PIL seeking a court-monitored investigation into the 2G scam to the court of Arun Mishra. It was first listed in Chelameswar’s court, but was moved to the court of the chief justice the following day. Misra, however, recused himself from the case (as he had heard the original case in the Delhi High Court) and the matter is now before Mishra’s court number ten.

Also, a case of extrajudicial killings in Chhattisgarh, which was being heard by Lokur, has been moved to Misra’s court.

Those observing the developments said the crisis began last November. In the case of alleged bribery of judges to permit admissions in medical colleges, Chelameswar had ordered the setting up of a five-judge bench. An upset Misra, however, scrapped the order and sent the case to a three-judge bench. A circular was also issued, which said that cases not listed before any other bench should be put up only before a bench headed by the chief justice.

The last straw for the judges, however, seemed to be the Loya case, as it dealt with the suspicious death of a member of their fraternity.

Senior Supreme Court lawyer Dushyant Dave, who has been vocal about the allegedly selective assignment of cases, wrote on a law website on January 10: “A little insight into the functioning of today’s Supreme Court will reveal that the chief justice has been exercising powers in a completely opaque and unfathomable manner. Several instances in recent months reflect that the Constitution benches are constituted by including only certain judges and excluding therefrom certain other judges.”

47-justice-loya B.H. Loya

The reactions to the news conference have been mixed. Those justifying the decision said the judges were left with no other option. “It has to be presumed that they tried to keep the issues internal,” said Supreme Court lawyer Shilpi Jain. “If the judges would have kept quiet, what was happening would have continued. People go to court for justice, so it was quite ironic that the judges had to go to the people’s court.”

Critics of the decision, however, said that though the issues might be extremely serious and of an urgent nature, the judges had done more harm than good with the press meet. In fact, people’s trust in the judiciary had been shaken. “The matter is now in the people’s court,” said former Delhi High Court judge R.S. Sodhi. “And, how do they view the judiciary? As a corrupt lot at war among themselves.” He said that, at this rate, the judges would end up as a “pack of trade unionists”, with even one of them capable of holding the court to ransom.

Former Supreme Court judge Justice A.R. Lakshmanan said that while he did not agree with the decision to go public, the issues raised were genuine. Calling for a reconciliation, he said, “The chief justice has not said anything on the issue. This is a beginning as it has helped in the matter not escalating. Now, the judges should come face to face, talk and arrive at a solution.”

On January 16, according to sources, Misra met the four judges, in the presence of three junior judges, but little headway was made. The chief justice offered no concrete proposal and was adamant that he was following the set convention in assigning cases. Also, it is said that if he now makes any changes, it would amount to admitting that there was something wrong in the way he operated earlier.

The Supreme Court has announced that, from January 17, the Constitution bench will hear crucial matters and its composition remains unaltered (it does not include the four dissenting judges). Apparently, the reason given is that, as the cases have already been heard for some time, it would be impractical to rejig the bench.

“I don’t think the matter has been resolved,” said senior lawyer Vikas Singh, who is also president of the Supreme Court Bar Association. “From the outside, it might appear that work is going on normally. A resolution can happen only in a full court meeting, where the issue of listing of matters is discussed, and a consensus is arrived at.”

Senior Supreme Court lawyer Vijay Hansaria said the chief justice would have to take some corrective steps, which have been long overdue. “The main grievance of the judges is that of allocation of cases. Some guideline should be worked out to decide which cases will go to which bench,” he said.

Meanwhile, another question being asked is—what did the four judges gain from holding the news conference? Said activist Shailesh Gandhi: “When the four judges said they were discharging their duty to the nation, did it mean that they were only fighting for their recognition as seniors? If that was the case, we were fooled into believing that there was a larger cause.”

However, those defending the four judges said their aim was to bring issues to the notice of the public, and that this would ensure that caution is exercised in the handling of politically sensitive cases.

“The registry will be more vigilant. The chief justice, as master of the roster, will be more vigilant,” said Supreme Court lawyer Sneha Kalita. “A message has gone to future chief justices, the bar and political parties that you cannot manipulate the judiciary.”

Meanwhile, the BJP government, accused of influencing sensitive cases in court, has maintained a studied silence, and seems eager to convey that all is well. The Congress, however, has pounced on the opportunity. “What the government should be speaking on are the contents of the underlying issues,” said Congress leader Abhishek Manu Singhvi. “They are avoiding, escaping and clearly trying to hide behind a wall of silence.” He added that, as the matter was linked to the government, it could not be treated as an internal matter of the judiciary.

The developments, said legal experts, pointed to the urgent need for reforms in the judiciary to bring in greater transparency and accountability. The Supreme Court needs to be restructured, said Arghya Sengupta, founder and research director of Vidhi Centre for Legal Policy, Delhi. The court should be restructured into three divisions—Admissions, Appellate and Constitutional, he said. “Admissions will only hear admission matters. Appellate would hear cases that are heard as a matter of right, and any special leave petitions admitted by Admissions. Constitutional will be a bench of most senior judges, who would hear all constitutional matters and any other matter Admissions deems to be of critical importance.”

To begin with, however, Chief Justice Misra and his brother judges need to erase the mistrust and lift the judiciary out of its deepest crisis yet.

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