By Mahasweta Muthusubbarayan
“Not only must Justice be done; it must also be seen to be done.” This famous edict laid down in the 1924 English case of R v Sussex Justices, has become one of the bedrocks of judicial adjudication across the world. This saying appears to have become a basis for dissent in the Supreme Court of India, driving the four senior-most judges of the Court after Chief Justice of India (CJI) Dipak Misra, to make an unprecedented move of airing grievances with the working of the Court machinery in public. Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph held a one-of-its-kind press conference today, where they expressed simmering dissatisfaction over the fulfilment of administrative duties by CJI Misra. The press conference itself, along with the consequent revelations, has caused shock waves across the legal and judicial fraternity, evoking strong reactions of support and opposition in equal measure.
Reason for the discontent
The four judges are not happy with the way CJI Misra has been allotting and distributing cases among the various benches of the 25-judge strong Supreme Court and feel that he has been disregarding the established norms and standard practices in the allocation of cases. Justice Gogoi apparently stated that the issue was about ‘assignment of cases’. According to the judges, they had called the press conference as their collective requests and representations to CJI Misra appeared to have fallen on deaf ears and they felt that it was their responsibility to make their reservations public, to safeguard the judicial institution and democracy. They portrayed the press conference as a last-resort measure to assert their views. The comments of the judges were a bit ambiguous, somewhat lacking in clarity, as they refused to give away too many details. When asked whether Justice Misra should be impeached, the judges replied that it was for the nation to decide.
What do the judges want?
The rift has been simmering for quite some time now, with the four judges already having written a letter to the CJI a couple of months back. But the last straw appears to have been the non-assignment of the pleas seeking an independent probe into the sudden, mysterious death of CBI Special Judge B H Loya, who had been adjudicating the Sohrabuddin Sheik fake-encounter case to a non-senior bench. The judges have been feeling, for quite some time, that the case allocations by CJI Misra have no rational basis, and are based on personal judgement and preferences, therefore lacking in objectivity. Senior Advocate Dushyant Dave had also recently pointed out that the Constitution Benches have been constituted only with certain judges while others were excluded, and Benches have been constituted without giving regard to the proficiency of the judges in particular branches of the law and ignoring the hierarchy in seniority. Reconstituted Benches have ignored available judges who were already hearing the case, contrary to established practice.
Last year, the judges had written a letter to the CJI, calling his attention to the fact that the CJI’s administrative powers as ‘Master of the Roster’ were meant to ensure the efficient transaction of the business of the Court, and were not an indication of any kind of superiority over the other Judges of the Court. They felt that the CJI was breaching time-honoured and well-settled traditions and conventions which were developed to guide him in the allocation of cases to the various Benches. They expressed disappointment that rules were not being followed, and that the other judges themselves were not refraining from hearing cases and pronouncing judgement on matters which should ideally be heard by Benches of different strength, composition and seniority. They had also called for measures short of impeachment to ensure compatibility and discipline among judges, and more stringent criteria for the selection of judges.
The judges were also irked by the delay in finalisation of the Memorandum of Procedure regarding the appointment of Judges to the High Courts and Supreme Court. They urged that since the Government had not yet reverted regarding the draft Memorandum of Procedure submitted to it in March 2017, the issue had to be discussed by the Collegium/the full Court in a Chief Justices’ Conference or taken up by a Constitution Bench. CJI Misra had refused to take up the matter judicially. The judges had concluded their letter by seeking expedient remedies to their concerns, and earlier today, had met the CJI regarding the assignment of cases, but to no avail.
Are the concerns of the judges justified?
Justice H R Khanna, in his dissenting opinion in the landmark Habeas Corpus case, observed that Rule of Law is the antithesis of arbitrariness. And even the CJI is bound by the Rule of law. CJI Misra’s actions have often been publicly controversial. He has been implicated in a land allotment case in Orissa as well as the suicide of former Arunachal Pradesh chief minister Kalikho Pul. Nevertheless, he is a judge with a long track record and the requisite seniority to be the CJI. His most notable reform has been a push for transparency in appointments made by the collegium.
However, as far as allotment of cases is concerned, his actions have shown a trend indicative of the allegations made by the Judges. He made a scene when he sent the medical college admissions scam, regarding the role of judges in the admission of students to MBBS courses, to a court consisting of less-senior judges instead of a five-judge bench of himself and Justices Chelameswar, Gogoi, Lokur and Joseph. If at all the grievances of the judges are well-founded, it is unclear why they have not called for a discussion of the issue involving the entire collegium, and have instead chosen to go to the media.
Many senior advocates and retired judges have expressed concerns that such tactics would undermine public confidence in the Judiciary and that such actions are unwarranted. It is possible that the SC may initiate some action against the judges for making such remarks in public. The press conference has also drawn the attention of the Executive, with PM Modi calling for a meeting with the Union Law Minister. CJI Misra is yet to respond formally to the allegations against him.