Saturday, January 13, 2018

January 13, 2018
To begin with, what has happened on January 12, 2018 is completely unprecedented in the history of Supreme Court of independent India! Never before have the Hon’ble Judges of the Supreme Court ventilated their grievances against the Chief Justice so openly in front of the media! Transcending judicial protocol which prohibits the sitting Judges from interacting with the media, all these 4 Justices accused Chief Justice Dipak Misra of assigning cases of “far-reaching consequences to the nation” to junior hand-picked Judges against the time-tested convention, practice and tradition of the court!
                                          Truly speaking, this is certainly a very serious charge and the CJI Dipak Misra would also now certainly deliberate on it and be more careful from now onwards! Why can’t well defined rules be made in this direction so that there is no confusion of any sort regarding picking of Judges for hearing sensitive cases? It can certainly be done if judiciary resolves firmly to do so!  
                                       It cannot be denied that all these 4 Judges – Justices Ranjan Gogoi who is next in line to replace Dipak Misra who is the present Chief Justice of India, Jasti Chelameswar who is senior to Gogoi but will retire early on June 22, 2018, Madan B Lokur and Kurian Joseph who make the current Supreme Court collegium are man of strong character and carry great reputation with them of always sticking to prescribed norms! I have never heard anything against any of these 4 Judges which may raise a question mark on their impeccable integrity! So what they say has to be taken most seriously.
                                   It must be brought out here that the seven-page letter which was addressed to the CJI and circulated at the press meet minced no words in stating that certain Supreme Court Judges arrogate to themselves the “authority to deal with and pronounce upon” cases which ought to be heard by other appropriate Benches. The letter is of October 2017 origin which implies it was written about three months back. Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measures but their efforts failed.
                                         To be sure, Justice Chelameswar while speaking for the four said they had collectively tried to persuade the Chief Justice to take remedial measure but their efforts failed. With a heavy heart, the Judges said that, “With the independence of the judiciary and the future of democracy at stake, they had no other choice but communicate to the nation to please take care of this institution.” Justice Chelameswar also sought to make it clear that, “They decided to act now because they did not want any wise men to say 20 years later that Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph sold their souls and did not take care of the interests of this illustrious institution.”
                                     It cannot be lightly dismissed that Justice Ranjan Gogoi has highly risked his chances of becoming the next Chief Justice by coming out in the open to air his differences with Chief Justice Dipak Misra! The other Judges also have taken a great risk by daring to come out in the open. They have acted as per their conscience and it needs real great guts to do so! How many of Judges in the Supreme Court have acted like them in the past? The answer is a big “none”!  
                                     Going forward, Justice Chelameswar also lamented that, “The administration of the Supreme Court is not in order. Many things undesirable have happened in the last few months. As seniormost judges of the court and of this country, we hold a responsibility to the institution and to the nation.” He also quipped that, “The convention of the court demands that important cases of public interest or sensitive matters should be first heard by the Chief Justice of India. If the CJI is not willing for some reason to hear the case, then it should be assigned to the next senior-most judge in the Supreme Court. Instead of that, such cases have been assigned to certain Benches and eventually given a quiet burial.” This is a very serious charge!
                                           Justice Chelameswar went on to further add that, “Unless the institution is preserved and allowed to maintain its dignity, democracy will not survive. The hallmark of a good democracy are independent and impartial judges.” Who can dispute or deny this? Why can’t their invaluable suggestions be implemented after taking into board the CJI Dipak Misra along with other Judges of the Supreme Court?
                                       Why drag on with the old deadwood? Why can’t fresh changes be made in the functioning of the highest court of India? Why do we forget that even judges are not infallible?   
                                          He also pulled back no punches in recounting that the trigger for the press conference was a meeting they held with the Chief Justice on the morning of January 12 regarding the assignment of a petition, seeking an independent probe into the mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin encounter case to a particular Bench!
                                Be it noted, they had expressed their reservations to the CJI about the assignation of the Loya case. But the CJI refused to budge. They had then informed him about their intention to go public. Though Justice Chelameswar did not name the Loya petition, Justice Gogoi, who is scheduled to take over as Chief Justice of India after Dipak Misra retires on October 2 in 2018, spoke up to clear the air by saying that the petition is indeed regarding Judge Loya’s death. He said: “Yes, yes. It was the Loya case.”
                                  Justice Gogoi further added that, “It is the discharge of our debt to the nation that brought us here. We have discharged our debt to the nation by saying what is what.” The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra who is a very junior Judge in Supreme Court heard the Loya petition. One has to concede here that a Bench led by Justice Arun Mishra termed the alleged mysterious death of CBI Judge BH Loya who was hearing the Sohrabuddin Sheikh encounter case as a “serious matter” and asked the Maharashtra government to respond by January 15.
                                        It also said the case should be heard bi-parte rather than ex-parte while asking the Maharashtra government to file the Judge’s autopsy report. It decided to hear the case despite protests from the Bombay Lawyers Association, represented by senior advocate Dushyant Dave that it has already field an identical case and it is pending before the Bombay High Court. The Apex Court is hearing petitions filed by Maharashtra based journalist BR Lone for a probe into Loya’s death on December 1, 2014.
                                        Another petition has also been filed by Congress leader Tehseen Poonawala on the same issue. Loya had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague’s daughter. The issue embroiled into a major spotlight in November 2017 after media reports quoting his sister fuelled suspicions about the circumstances surrounding his death and its link to the Sohrabuddin case. Poonawala in his lea said the circumstances of the death of the Judge were “questionable, mysterious and contradicting”. Even Caravan magazine had covered it in detail some time back.   
                                       It must be revealed here that the 4 Judges said the letter written in October 2017 did not mend matters. Their efforts to convince the Chief Justice to take corrective measures had failed thus forcing them to go public. The letter written by the 4 Judges reveals their utter anguish at the recent judicial orders and an erosion in the judicial independence of the court. The letter said the Chief Justice’s authority, as the master of the roster to decide which Bench should decide which case, did not make him a “superior authority”.
                       Furthermore, the letter also stated that, “The Chief Justice is only the first among equals – nothing more or nothing less”. Yet, they said, “there have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of this court selectively to the Benches of their preference without any rational basis for such assignment.”  
                               
                                      Truth be told, the letter which the Supreme Court’s four seniormost Judges have made public has emphasized the row between the Apex Court and the government over finalizing the Memorandum of Procedure (MoP). The four Judges expressed displeasure over delays in finalizing the MoP and observed that the government’s “silence” on the matter meant it had been accepted. The MoP lays down the procedure to be followed in appointment of Judges in the higher judiciary and while it came into existence in 1993, plans to revise the existing MoP have been stalled after differences between the Supreme Court and the government came out in the open.
                               It cannot be lost on us that the MoP was laid down on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-Judge Constitution Bench devised the Collegium system of appointments. The letter observed that the MoP was finalized and sent by the “then Hon’ble the Chief Justice of India to the government of India in March 2017”. The letter stated that, “The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra)”.
                                    It is noteworthy that the letter also mentions a Supreme Court order dated October 27, 2017. The letter mentions that, “We deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest.”
                               To recapitulate, it was on October 27, while hearing a petition that was filed by lawyer RP Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP that a Bench of Apex Court comprising of Justices AK Goel and UU Lalit had issued notice to the Centre and directed the presence of Attorney General KK Venugopal. The development came as a surprise as it meant clearly that the Supreme Court had taken up the matter, which till then was being dealt with on the administrative side, on the judicial side.
                              To put things in perspective, all these 4 Justices have said in their letter that, “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” Who can deny that 10 High Courts in India are without proper Chief Justice and have only acting Chief Justice? Who can deny that there will be many vacancies in Supreme Court as many Judges are about to retire this year? Who can deny that there are more than 470 vacancies in the strength of High Court Judges? Who can deny that there are nearly 6000 vacancies in the strength of Judges in lower courts? Why are these vacancies not being filled? Why is Centre neglecting judiciary?
                                           Why is Centre not creating more high court benches as recommended by 230th  report of Law Commission of India? Why Nehru had the guts to create a bench just about 150 km away from Allahabad at Lucknow 70 years back in 1948 but no PM till now 70 years later had the courage to set up a bench anywhere in any part of UP even though Union Minister like Satyapal Singh demand 5 benches and Rajinder Aggarwal who is BJP MP from Meerut demands benches at Meerut, Agra and Gorakhpur and so also other MPs from West UP keep demanding benches regularly only to be ignored time and again?
                                    All said and done, this open rift in the Supreme Court has sent shockwaves throughout the nation. Former CJI RM Lodha says the controversy could have been avoided but doesn’t fault the judges conscience call. He says during his term, he strictly went by seniority while assigning cases to avoid allegations of arbitrariness. This “dangerous and discretionary bomb” must be defused by ending all discretion vested in CJI in this behalf by making written rules of going strictly by seniority as former CJI Lodha very rightly and strongly advocates!
                                       KTS Tulsi who is an eminent senior lawyer said that, “I am sure they (4 judges) have exhausted all other remedies. One could see pain on their faces while they were speaking. The whole matter is with respect to judicial propriety.” Justice RS Sodhi however feels that, “By press conference, are you going to hold a referendum and ask people what is right and wrong?” Prashant Bhushan defends them saying that, “Somebody had to confront the situation, where the CJi is blatantly misusing his powers. Hence the unprecedented step.”
                            Former Chief Justice of Punjab and Haryana High Court Justice (retd) Mukul Mudgal said that, “The four senior-most judges must have had compelling reasons to go public and they are not public hungry judges”. Subramanian Swamy who is a lawyer as also BJP MP in Rajya Sabha says that, “We cannot criticize them (the four judges). They are men of great integrity…We must respect them.” Salman Kurshid who is an eminent Supreme Court lawyer too lamented that, “I feel agony that the highest court of the land should come under such stress that forces judges to address the media.”
                                 Former Supreme Court Judge KT Thomas said that, “It should not become a precedent. Sitting Supreme Court Judges interacting with the media especially concerning matters relating to administrative, business and judgment side of the top court have never happened before. The image of the institution will not suffer from today’s event. The Supreme Court is far above all these.” Former CJI TS Thakur felt that this should have been sorted out within the institution instead of bringing them out in public. He asked that, “How did a press conference by four senior judges of the Supreme Court help resolve their discontent against the Chief Justice of India? It does not help anybody, particularly the institution if someone was to bring it out in the open. Roster issues are also matters which can be sorted out.”
                                    Senior lawyer Rebecca John said it must have been the last resort available to the four judges. Attorney General KK Venugopal said that, “What has happened today could have been avoided. The judges will now have to act like statesmen and ensure that the divisiveness is wholly neutralized and total harmony and mutual understanding prevail in future. This is what all of us at the bar want and I am sure that the judges, including the CJI, will rise to the occasion.”On a concluding note, the only silver lining out of this entire supreme judicial crisis in the highest court of India which is certainly most alarming is that now many are realizing rightly that fixed rules must be made clearly and very urgently stipulating  that only seniormost Judges will hear sensitive cases and all discretionary power available right now with the Chief Justice should be immediately abolished! 
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.